Friday, July 27, 2012
Wrightslaw is live blogging all week. We hope you will join us for the final day of the Institute of Special Education Advocacy (ISEA).
Class members gather class information to the final day of ISEA.
Agenda for Today
Legal Claims and Remedies
Creating Systemic Change in Your State
Graduation and Presentation of Certificates
12:52 pm Wrightslaw
Jeffrey Breit, the 2008-2009 St. George Tucker Adjunct Professor of Law and partner at Breit, Drescher, & Imprevento, who provided the impetus to create the PELE Special Education Advocacy Clinic speaks to the graduates.
Thank you to Professor Patty Roberts, Director of Clinical Programs and Supervisor of the PELE Special Education Advocacy Clinic for her outstanding leadership and organization for ISEA.
ISEA founders Kayla Bower, Patty Roberts, Pam and Pete Wright present certificates to the ISEA Class of 2012.
11:03 am Wrightslaw
Using State Administrative Complaint Provisions under IDEA to Create Systemic Change
Jim Comstock-Galagan is the Executive Director of the Southern Disability Law Center (SDLC).
Jim shares regulatory requirements for state complaints, resources and references, and effective strategies to use when you file a state complaint.
Every state must have procedures for this – regulations only, not in the statute.
State complaints cover a broad range of violations of IDEA and must contain statement that LEA violated IDEA (Part B) and all the facts re complaint.
Can be used to resolve any matter related to violations of:
- child find
- related services
- ESY (regression and recoupment)
- Lack of progress
- Educational placement
A State Complaint may be filed by any individual (organization, individual, out-of-state individual (no longer in the district), grandparent).
Complaint can be filed against public agency including SEA, LEA, nonprofit public charter school, or a political subdivision of state providing education services (juvenile correctional facility).
SEA remains responsible for complying with all procedural and remediation steps required in the federal regulations (34 C.F.R. 300).
The Scope of State Complaints
The SEA’s state complaint procedures must address both procedural and substantive IDEA violations.
In a complaint, the district must have the data to support their decisions in cases.
OSEP Commentary to 2004 IDEA Regulations, 71 Fed. Register 44601 (806).
- State Complaints can address both individual and systemic issues.
- In 2000, OSEP stated “the state complaint procedures are available for resolving any complaint…including complaints that raise systemic issues.” See OSEP Letter to Chief State School Officers, July 17, 2000 Page 4.
- In 2001, OSEP stated that “…an SEA is required to resolve any complaint …including a systemic complaint alleging a public agency [LEA] has failed to provide FAPE to a group of children with disabilities.” See OSEP Letter to Nann, September 21, 2001 Page 2.
- In 2008, OSEP stated that “states are responsible for resolving any complaint, including complaints containing allegations of a statewide, systemic nature…” See OSEP Letter to Jonathan Zimring, July 1, 2008 Page 1.
In the commentary to the 2004 IDEA Regulations, OSEP emphasized the broad scope of State Complaint procedures:
“We believe that the broad scope of the State complaint procedures is critical to each State’s exercise of its general supervision responsibilities. …We believe placing limits on the State complaint system…would diminish the SEA’s ability to ensure its LEAs are in compliance with Part B of the Act…and may result in an increase in the number of due process complaints filed and the number of due process hearings held.”
OSEP Commentary to 2004 IDEA Regulations 71 Fed. Register 46601 (806).
Jim discusses timelines and extended timelines for filing systemic complaints.
He also emphasizes important factors in the investigation process re on-site investigation (including OSEP requirements for SEAs), ability to submit additional information, proposal from the public agency to resolve, and mediation.
Reference: Jefferson Parish Complaint. http://www.splcenter.org
The SEA must issue a written decision that addresses each allegation, including findings of fact and conclusions, and reasons for its final decision.
The Scope of State Complaint Remedies
- Individual/Systemic Corrective Action Compensatory education
- Monetary reimbursement
- Appropriate future provision of services for all students with disabilities.
34 C.F.R. § 300.151 (b), 152(a)(5); 71 Fed. Register 46602 (8/14/2006); Letter to Copenhaver, 10/31/2008.
Jim covers steps to be taken to improve your chance of success when filing a state complaint. He also provides complimentary strategies to broaden your client base and support and to strengthen your complaint.
Proving Your Complaint
Do your research and include in the complaint:
- statistical data
- legal research and detailed discussion of previous IDEA violations
- affidavits that support your your facts and claims
9:11 am Wrightslaw
Special Education: Claims and Remedies
William H. Hurd is a partner in the Richmond office of Troutman Sanders and leads the firm’s Appellate Team. He argued the case of Schaffer v. Weast, 546 U.S. 49 (2005) (allocating burden of proof at administrative hearings) as well as several key cases in the Fourth Circuit Court of Appeals.
IDEA requires the school system to provide:
“An opportunity for any party to present a complaint…with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education such child…”
IDEA provides the broad right to contest school system action. Section 1415(a)(6)(A).
- establish eligibility and category
- correct deficient IEP
- obtain compensatory education
Mr. Hurd discusses requirements, cases, and strategies re:
- placement, private placement
- compensatory education
- compensatory reimbursement for private services
- procedural safeguards requirements and notice and exceptions
- impact of evaluations
- mediation, stay-put (maintenance of current educational placement)
- disciplinary claims, manifestation determination, expedited hearings
- access to records and student files
- attorneys fees and expert witness fees
Who can bring these claims? Parents or child?
Parents have their own right to enforce duties of school system under the IDEA.
During due process it is always wise to consult an attorney or well-trained non-attorney advocate.
Mr. Hurd covers the unique process involved in Due Process including:
- Due process hearing
- Initial complaint – form and content (including Letter to the Stranger), service of complaint
- Hearing officer
- Timetable – Resolution period, mediation session
- What to request from school system and employees; What may be requested by school system (beware of any e-mail traffic)
- 5-day rule
- Burden of Proof (generally on the parent). “The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief.” (Schaffer v. Weast)
- Experts, expert witnesses
- Additional evidence
- State and Appellate Court review process
- Statute of Limitations
Mr. Hurd provides an overview of claims outside of IDEA (i.e., 504, ADA, Section 1983, etc.).
Be creative in your claims. If it does not fit under IDEA – where will a claim fit, as in:
HH v. Moffett & Chesterfield School Bd. In HH v. Moffett, an action brought under 42 U.S.C. § 1983 (2000), a disabled child and her mother alleged, that a special education teacher and a teaching assistant maliciously kept H.H. restrained in her wheelchair for hours at a time during the school day while they ignored her, verbally abused her, and schemed to deprive her of educational services.
The 4th Circuit held that their conduct “violated H.H.’s clearly established right to freedom from undue restraint under the Fourteenth Amendment, and Appellants are therefore not entitled to qualified immunity as a matter of law.”
For non-IDEA claims – discussion of “exhaustion requirement”.
Mr. Hurd provided an extensive list of caselaw references that included in part:
G v. Fort Bragg Dependent Schs., 343 F. 3d 295 (4th Cir. 2003)
Hogan v. Fairfax County Sch. Bd., 645 F. Supp. 2d 554, 573 (E.D. Va. 2009)
Forest Grove Sch. Dist. v. T.A., 129 S. Ct. 2484, 2496 (2009)
Prince William County Sch. Bd. v. Hallums, 2003 U.S. Dist. LEXIS 27233 (E.D. Va. Aug. 12, 2003)
Sellers v. School Board of Manassas, 141 F. 3d 524, 526-28 (4th Cir. 1998)
Winkelman v. Parma City School Dist., 550 U.S. 516, 533 (2007)
Schaffer v. Weast, 546 U.S. 49 (2005)
MM v. Sch. Dist., 303 F. 3d 523 (4th Cir.2002)
A.W. v. Fairfax County Sch. Bd., 548 F. Supp. 2d 219, 225 (E.D. Va. 2008)
Hoekstra v. Independent Sch. Dist., 103 F. 3d 624, 627 (8th Cir. 1996)
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