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This is another in a  series of posts comprising an introduction to special education law.  This series is meant to be an introduction for newbies and a refresher course for more experienced readers.  Please let us know what you think about the series. Today's post and the next post concern some unusual procedural issues in due process hearings.  The due process hearing is the administrative law equivalent of a trial in a civil action. A due process hearing resembles a court trial.  Increasingly, parties are represented by lawyers.  Opening statements are made.  Testimony is provided by parents, teachers, related service providers, administrators, and many others- often by expert witnesses.  Although the formal rules of evidence are generally not applied, exhibits, or documentary evidence, are offered and admitted.  The tone is increasingly adversarial.  Either closing arguments are made or written briefs are submitted.  Hearing off...

This is another in our  ongoing series  on the basics of special education law.  These posts are meant to be an introduction for those new to the field and a refresher for the seasoned veterans. Attorney's Fees A prevailing parent can generally get their attorney's fees from a court. IDEA §615(i)(1)(3).  They are not awarded by hearing officers but are awarded by the court.  Since 2004, a prevailing school district may get attorney's fees from a parent or parent's attorney if the case was frivolous or filed for improper purposes. IDEA §615(i)(1)(3)(b)(ii)and(iii). Expenses- Expert witness  fees                              In  Arlington Cent. Sch. Dist Bd. of Educ v. Murphy    540 U.S. 291, 126 S.Ct. 2455, 45 IDELR 267 (6/16/06) the  Supreme Court  ruled that a parent who pre...

This is another post in our ongoing series on the basics of special education law.  Please let us know how you are enjoying this series.  We feel that this is a good introduction for newbies and a good refresher for seasoned pros.   The federal regulations implementing IDEA provide that parties to due process hearings have a right to be accompanied by  legal counsel  and by individuals with special knowledge or training with respect to the problems of kids with disabilities "...except that whether parties have the right to be represented by non-attorneys at due process hearings is determined under State law." 34 C.F.R. §300.512.  This regulation was changed a few years ago to reverse a previous long standing policy of the department of Education that had permitted non-attorney advocates to fully represent parents in the past. To be clear a parent may still have an advocate present to advise her, but the advocate may not be able to r...

This is another post in our ongoing series on the basics of special education law.  Please let us know how you are enjoying this series.  We feel that this is a good introduction for newbies and a good refresher for seasoned pros.   Today we talk about the stay put provision- one of the basic concepts in this area of the law, yet also one of the most misunderstood. It only applies when a due process hearing is pending. Stay Put               IDEA § 615 (j) provides that (except in certain discipline cases), during the pendency of any due process or court proceedings pursuant to this section, unless the parties agree otherwise, the student ‘…shall remain in the then-current educational placement of the child…”  This is commonly referred to as the stay put provision.  The stay put placement is the last agreed upon IEP, unless the parties agree otherwise. See 34 C.F.R. § 300.518.  ...

  This is another in our continuing series on the basics of special education law.    If the parents (or adult student) win a due process hearing, the two most common types of relief are compensatory education and reimbursement for a unilateral placement.  Today we will take a hard look at the former remedy. Compensatory Education Reid ex rel Reid v. District of Columbia  401 F.3d 516, 43 IDELR 32 (D.C. Cir. 3/25/05).  The D.C Circuit developed a  qualitative  standard for awards of compensatory education in order to place disabled students in the same position they would have occupied but for the school district’s violation of IDEA.  The court rejected the hearing officer’s calculation awarding one hour of compensatory education for each day of denial of FAPE.  The court also rejected the parents’ request of one hour of compensatory education for each hour of denial of FAPE.  Instead, the court adopted a mo...

This is another installment in our continuing series on the basics of special education law.  Today we enter the mysterious world of unilateral placements.  If the parents (or adult student) win a due process hearing, the two most common types of relief are compensatory education and reimbursement for a unilateral placement.  Today we will take a look at the latter remedy. Unilateral Placements In the case of  Burlington Sch. Comm. v. Dept. of Educ., et. al.  471 U.S. 359, 105 S.Ct. 1996, 556 IDELR 389 (1985), the  Supreme Court  was faced with the issue of whether the IDEA  permitted courts to award reimbursement to parents when the  IEP  developed by the schools is not appropriate and the parent removes the student from public school and places him in a  private school  that does provide  FAPE .  Noting that the statutory provisions of the IDEA confer broad equitable powers upon the courts to fashion an appropriate ...

This is the most recent post in the continuing series that is meant to be an introduction to special education law.  In today's post we will be discussing discipline of students with disabilities.  People often ask why disciplinary actions are regulated by the special education law.  The reason is that before passage of the law's predecessor, it was common for school officials to exclude children with disabilities by expelling them and giving them long suspensions. This series of abuses was reflected in the legislative history of the law.     Discipline is one area that seems to cause folks to develop stomach problems (sorta like the rule against perpetuities in law school), but it isn't really as hard as we seem to make it.  Let me know if this explanation helps.                               ...

This is the most recent post in the continuing series on  an introduction to special education law.  The series is meant to be a solid introduction for newbies as well as a good review for seasoned special ed law vets. In today's post we will be discussing the transition services that must be given when a special education student nears graduation.   Transition               The IDEA defines transition services as a coordinated set of activities designed to be a results oriented process that focuses upon the individual child’s needs, strengths and preferences.  IDEA, § 602 (34).  Not later than the first IEP to be in effect when the child is 16 years old and each year thereafter, the IDEA requires that the IEP contain measurable post secondary goals; the transition services needed to achieve those goals; and beginning at one year before the child reaches the age of majority, a s...

This is another post in our current series introducing readers to special education law's key concepts.  Today's post is about related services. This phrase is almost always preceded by "special education and..." Let me know if you are enjoying this series. For some it is an introduction.  For others it is a chance to brush up on the key concepts... Related Services The IDEA defines  related services  as follows: (A)    IN GENERAL- The term ‘related services’ means transportation, and such developmental, corrective, and other supportive services (including speech-language pathology and audiology services, interpreting services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, school nurse services designed to enable a child with a disability to receive a free and appropriate public education as described in the individualized education program of the child, counseling se...

Our series providing an introduction to special education law continues.  Previous posts have introduced the two basic concepts underlying IDEA, free and appropriate education and least restrictive environment.  Last week we discussed eligibility and identification.  Today we will look at selected IEP issues. The Individualized Educational Plan (hereafter sometimes referred to as “IEP”) is at the heart of the Individuals with Disabilities Education Act, 20 U.S.C. Section 1400, et seq (hereafter sometimes referred to as the “IDEA”.) In the seminal decision of in  Board of Educ., Hendrick Hudson Central Sch. Dist. v. Rowley , 455 U.S. 175, 102 S.Ct. 3034, 3038, 553 IDELR 656 (1982), the U. S. Supreme Court noted that the function of the IEP is to tailor the free and appropriate education required by the IDEA to the unique needs of the student with a disability. Similar language is used by the high court in the recent Endrew F decision. In a subsequent decision, the Su...

Our series providing an introduction to special education law continues.  Previous posts have introduced the two basic concepts underlying IDEA, free and appropriate education and least restrictive environment.  Today's post concerns eligibility and identification. Identification & Eligibility Issues pertaining to identification and eligibility are governed by IDEA § 612(a)(3) and 614 (b)(4)-(6).  See, 34 C.F.R, § 300.121- 300.125, 300.300, 300.306, 300.307 – 300.311.   In summary, to be eligible, a child must have one of the enumerated conditions( mental impairment, a hearing impairment (including deafness), a speech or language impairment, a visual impairment (including blindness), a serious emotional disturbance (referred to in this part as “emotional disturbance”), an orthopedic impairment, autism, traumatic brain injury, an other health impairment, a specific learning disability, deaf-blindness, or multiple disabilities)(which adversely affects his educ...