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Procedural Safeguards & Parent Notice
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dad and daughterWhen Congress enacted Public Law 94-142 as the Education for All Handicapped Children's Act in 1975, they included a system of procedural safeguards designed to protect the rights of children with disabilities and their parents. During subsequent reauthorizations of the law, now known as the Individuals with Disabilities Education Act, Congress maintained and added to these safeguards.

Procedural safeguards include the right to participate in all meetings, to examine all educational records, and to obtain an independent educational evaluation (IEE) of the child. Parents have the right to written notice when the school proposes to change or refuses to change the identification, evaluation or placement of a child.

The law includes several ways to resolve disputes including mediation, a "Resolution Session" and due process hearings. Procedural safeguards include legally binding written mediation agreements and confidentiality.

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

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, they 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 do not take these steps, they may lose their right to reimbursement for an appropriate private placement – even if the public school placement was inappropriate.

Articles

Here are some articles and other resources that are intended to protect the child’s right to a free appropriate public education (FAPE).

Throwing the Flag - What to Do When the School Says "No" by Pete Wright, Esq. What happens when the schools fail to provide prior written notice? If you have concerns and objections, don't wait for the school to respond. Write your own Prior Written Notice letter - see the Sample Letter.

Prior Written Notice (PWN) is a Powerful Tool When Skillfully Used. Jeff Martin explains why bringing out the PWN form is a show stopper.  Saying “no” is too easy for some IEP teams.  Articulating "why" according to 20 U.S.C. 1415(c) is tough.  Learn how to remain nice and let the law be the bad guy.

Independent Educational Evaluations: What? How? Why? Who Pays? Parent attorney Wayne Steedman describes IEEs, the value of IEEs for parents and school personnel, what the law requires, and who is financially responsible.

Independent Educational Evaluations: Must Parents Chose an Evaluator from School's Approved List? In 2004, the Office of Special Education Programs (OSEP) published a Policy Letter about IEEs and parent choice; clarified that parents have a right to choose their independent evaluator.

Procedural Safeguards in IDEA 2004 with commentary by Pete Wright. (pdf)

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

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

Strengthening Parent Representation The American Bar Association has launched a new website dedicated to attorneys representing parents in child protective proceedings. The site contains resources, information about upcoming trainings and other materials. Parents' attorneys can also sign up for a listserv where they can share resources, ask questions, etc. This is part of a new initiative launched by the Bar to strengthen the representation parents receive.

How to Use a Parent IEP Attachment for PWN. Judy Bonnell devised a simple parent attachment to use as a Prior Written Notice form. PWN clearly states that concerns and requests made by the parents must be accepted or rejected -- and that the IEP team must list the reasons for accepting or rejecting the parent's proposal.

Our School Says the IEP Has Expired. Now What? by Sue Whitney. Removal from special education requires Prior Written Notice (PWN) from the school. IDEA 2004 states the school district must tell you in writing. Learn the PWN notification requirements in this article.

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Books, DVDs and CD-ROMs from Wrightslaw

Surviving Due Process: When Parents and the School Board Disagree - Stephen Jeffers v. School Board. The Individuals with Disabilities Education Act requires that public schools provide a free, appropriate education to students with disabilities. If there is a disagreement between parents and their school district, either party my request a special education due process hearing.

Wrightslaw: Special Education Law, 2nd Edition
(ISBN: 978-1-892320-16-2) includes answers to questions about the Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Act, and the Family Educational Rights and Privacy Act; includes extensive commentary by Pete about legal rights and responsibilities; how to use tactics and strategies.

Wrightslaw: From Emotions to Advocacy, 2nd Edition (ISBN: 978-1-892320-09-4) Learn advocacy skills, organizing the child's file, measuring progress, writing SMART IEPs, letter writing and school meeting survival strategies.

Wrightslaw Special Education Law & Advocacy Training (6.5 hours) with Pete and Pam Wright. This program includes all the content of the full day program ... and more than an hour of bonus content. The content is divided into four programs: two about law; two about advocacy strategies. Each program includes several topics. Available as a download and on a CD-ROM.

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Caselaw


U. S. Supreme Court

Board of Ed. of Hendrick Hudson Central School Dist. v. Rowley 458 U.S. 176 (1982). First decision in a special education case by the U. S. Supreme Court; defined "free appropriate public education.

Honig v. Doe, 484 U.S. 305 (1988). Strong decision in school discipline case on behalf of emotionally disturbed children who had academic and social problems. Court clarified procedural issues designed to protect children from school officials, parent role, stay put, that schools shall not expel children for behaviors related to their handicaps.

U. S. Courts of Appeals

Amanda C. v. Clark County Sch. Dist. and Nevada Dept. of Ed (9th Cir. 2001) This strongly written decision on behalf of a child with autism cites research about ABA/Lovaas treatment; describes purposes of the IDEA; IEPs and procedural safeguards. The Court found that the district's failure to provide parents with evaluations adversely affected the parents' ability to make decisions and damaged the child; district failed to provide FAPE; standard of review in two-tier system; credibility of witnesses.

Joseph James v. Upper Arlington City Sch. District (6th Cir. 2000). Decision about tuition reimbursement for education of child with dyslexia in a private school that specializes in educating children with dyslexia; also statute of limitations and procedural safeguards. In pdf In html

Jaynes v. Newport News Public Schools, (4th Cir. 2001) Child with autism whose parents provided intensive home based ABA/Lovaas program entitled to reimbursement; discussion of statutes of limitations, procedural safeguards, notice requirements, and reimbursement.

Knable v. Bexley City Sch. District, (6th Cir. 2001) Child with behavior disorder; decision includes a discussion of IEPs, draft IEPs, IEP requirements, tuition reimbursement, placement, burden of proof, more.

Weiss v. School Board of Hillsborough County (11th Cir. 1998) Case about damages, procedural violations; denial of FAPE.

U. S. District Courts

Community Consolidated Sch. Dist. #93 v. John F. (IL) Important discipline case; procedural violations, prior written notice requirements, manifestation determination review, suspensions for more than 10 days, expedited hearings, special education and related services under IDEA, "passing grades" and FAPE, homebound instruction violates LRE, more. In Word    In pdf

Stefan Jaynes v. Newport News Public Schools U. S. District Court, Eastern District of Virginia. Parents reimbursed for ABA Lovaas program for child with autism, procedural safeguards, notice, statute of limitations. PDF   Word

Sarah M. v. Weast, U. S. District Court, Maryland. Parents remove child from public program and place her in a private school, request reimbursement. School claims that parents did not give 10-day notice, as required by IDEA-97. Judge overturns decision by Administrative Law Judge (2000)

Reports and Publications

New Report: Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and Their Children. Currently, the U.S. legal system is not protecting the rights of parents with disabilities and their children. Two-thirds of state child welfare laws allow courts to determine a parent is unfit solely on the basis of a parent’s disability. Report offers draft model state and federal statutory language to correct the discrimination faced by parents with disabilities in the United States. (National Council of Disability, September 2012)

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Revised: 12/14/12

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