A child’s educational records often contain private personal information about the child and the family. In the course of determining a child’s eligibility for special education services and designing a program to meet the child’s needs, schools may acquire information about the child’s social and medical history. Sometimes, that record may include medical and other personal information about other members of the family. That information is private and confidential and the IDEA regulations at 34 CFR 300.623 outline a school district’s obligations to protect the confidentiality of that information. Schools must protect the confidentiality of personally identifiable information when that information is collected, stored, disclosed, and destroyed.

. Personally identifiable  means information that contains:

 (1) the name of the child, the parent, or other family member;

 (2) the child’s address;

 (3) a personal identifier such as a social security or a student number; or

 (4) a list of personal characteristics or other information that would make it possible to identify the child with a “reasonable certainty”.

            Moreover, school districts must assign a specific person  to be responsible  for ensuring the confidentiality of personally identifiable information. Additionally, school staff  that collect or use this information must be trained in the State’s confidentiality procedures under the IDEA and the Family Education Rights and Privacy Act (FERPA) regulations. And, finally school districts must keep a current listing of the names and positions of all employees who have access to personally identifying information. That list must be available for public inspection.

Access to Records and Consent to Release

            Of course, parents have the right to inspect and review their child’s educational records. Parent’s access rights include the right to have information in the record interpreted or explained, the right to get copies of the record, and the right to have a representative of the parent review the records.

            Generally, personally identifiable information may not be disclosed without parental consent. For example, if a parent wanted the school district to allow the parent’s  representative or attorney to review the records, the parent would need to consent and authorize the district to provide that access.  But, information may be released, without parent consent, to officials of participating agencies in order to comply with the IDEA. 

Fees for Records

            While parents have the right to obtain copies of their child’s educational records, the school district may charge a reasonable fee for copying the records. But the school district may not charge a fee that effectively prevents the parent from exercising their right to inspect and review the records.

Amending School Records

            Parents who believe that information contained in their child’s educational records is inaccurate, misleading, or violates the child’s privacy and other rights may ask the school to amend the child’s records. The school district must decide, within a reasonable time, whether to amend the record or not. If the district decides not  to amend the record, the district  must tell the parent and inform the parent about the right to a hearing. If parents request a hearing it must be provided. Hearings regarding amending a student’s records are conducted under the FERPA Rules at 34 CFR 99.22.  If the hearing officer determines the information is inaccurate, misleading, or violates the child’s rights, then the district must amend the record and inform the parents in writing that the record has been amended.

            But, even if the information is not found to be inaccurate, misleading, or to violate the child’s rights, the parents still have the right to include in the child’s records a statement commenting on the information and disagreeing with the hearing decision.  So, parents have the right to include a statement in the child’s records explaining why the parents feel that particular portion of the record is inaccurate, misleading, or violates the child’s rights. The parents’ statement must be maintained in the child’s records and if the records are disclosed  to other agencies or individuals, the parents’ statement must also be disclosed. 

       In 2006 the U.S. Supreme Court ruled in Arlington Central School District Board of Education v. Murphy that parents who prevail in an IDEA case cannot recover the costs of expert witnesses as part of recovering their attorneys’ fees. The IDEA provides that parents who prevail in any action or proceeding under the IDEA may be awarded their attorney’s fees as part of the costs of litigating their case.  In the Arlington Central case the parents prevailed in getting the school board to pay for their son’s private school tuition. As the prevailing party, the parents asked to be reimbursed the costs of an educational consultant they used in the litigation as part of recovering their costs and attorneys’ fees. The Supreme Court, however, ruled that since the IDEA didn’t specifically include expert costs as part of recovering attorneys’ fees, parents were not entitled to recover those non-attorney expert witness costs. Fortunately, the IDEA Fairness Restoration Act (H.R. 4188) has been introduced in Congress to amend the IDEA to include expert witness fees and other expenses as attorneys fees.

If this bill becomes law, parents who prevail in IDEA cases will be able to recover their expert witness fees as attorneys’ fees. Moreover, parents will also be able to recover “the reasonable costs of any test or evaluation necessary for the preparation of the parent or guardian’s case …”.

 In most cases  families need to pay educational consultants and other expert witnesses in order to prevail in a due process hearing and subsequent proceedings. This is true, because the school district can rely on its staff to provide expert testimony to support the district’s view. Without their own experts to contradict the school district’s witnesses,  parents are unlikely to prevail. Few families can afford the costs of an attorney to enforce the IDEA and even fewer still are able pay the costs of the witnesses and evaluations needed to prove their side of the case. Thus, this legislation will help level the playing field for families of children with disabilities. For more information on this important legislation see the brochure produced by the Council of Parent Attorneys and Advocates, Inc. (COPAA). COPAA has also produced this brochure in Spanish.

Finally, COPAA has designated May 6^th as a day for concerned individuals to call their Congressional Representatives to ask them to co sponsor H. R. 4188 The IDEA Fairness Restoration Act. If you don’t know your Congressional Representative go to http://www.house.gov/.

      In a recent series of articles I covered resolving disputes under the IDEA through mediation, the resolution process, and due process hearings. Still, another way to resolve disputes under the IDEA is by filing a complaint with the State Education Agency (SEA). The IDEA regulations require that State Education Agency’s have a process to resolve complaints regarding implementing the IDEA. Under this process individuals or organizations may file a complaint for violations of the IDEA with their State Education Agency. Upon receiving a complaint asserting a violation of the IDEA, the State Education Agency may carry out an independent investigation and, if necessary, conduct that investigation at the school or program where the violation may have occurred.

             A complaint under the State Education Agency Complaint Process is not the same as the Due Process Complaint Notice that parents are required to file to request a due process hearing. The complaint procedure being discussed here involves an investigation by the State Education Agency rather than a hearing with an independent hearing officer. In the course of an investigation the State Education Agency may review documents and interview individuals, but there is usually not a formal hearing.

            If, after its investigation, the State Education Agency determines the IDEA was violated and a child was denied appropriate services, it can require the school district to remedy or correct the violation. In order to correct the violation, the State Education Agency can require the school district to provide compensatory services, monetary reimbursement, and/or provide appropriate services in the future.

Compensatory Services

            Compensatory services are services that are provided to make up for, or compensate the child for, services that legally should have been provided but were not. For example, consider a situation in which a student’s IEP clearly stated that the student was to receive physical therapy three times a week. The physical therapy, however, was never actually provided. To resolve a complaint about the school district’s failure to provide the required physical therapy, the State Education Agency could require the school district to provide additional therapy services beyond those required by the IEP. These additional services would be “compensatory” because they are intended to compensate or make up for the services that were not provided.

Monetary Reimbursement

            Or, perhaps the child’s parents had privately purchased physical therapy services for their child during the time the school district was not providing the physical therapy services as required by the IEP. In that circumstance the State Education Agency might require the school district to reimburse the parents the money they paid for the private physical therapy. Thus, the parents are provided with monetary reimbursement for the costs of the therapy the parents purchased.

Future Compliance and Services

            Finally, consider a scenario in which a student’s IEP included access to a piece of assistive technology such as a  tape recorder to record lectures, but the tape recorder has not been provided. The State Education Agency might order the school district to provide the tape recorder in the future.

When to Use the State Education Agency Complaint Process

            The State Education Agency Complaint Process is  best used for cases in which the school district has very clearly not complied with the IDEA. For example:

            (1) Services have not been provided as required by an IEP.

            (2) The parent has requested that their child be assessed to determine eligibility for special education, and school personnel have not followed through on the assessments.

            (3) The school district hasn’t responded to a request for an independent evaluation regarding assistive technology issues and hasn’t scheduled a hearing to resolve the dispute.

            (4) The school district hasn’t notified parents of due process procedures.

            (5) School personnel have assessed a student without getting the parent’s consent.

            If the issue involves very clear violations of the IDEA, then the Complaint Process can be useful in getting the school district to comply with the law. On the other hand, if the issue concerns a disagreement over whether a student needs a particular service and the school district refuses to include that service on the IEP, it is difficult for the State Education Agency to resolve that dispute through the complaint process. Determining a student’s educational needs requires evidence and the testimony of witnesses. That determination is more appropriate for an impartial hearing officer, who will be able to hear that kind of testimony. The State Education Agency’s investigation is mainly limited to reviewing documents and interviewing individuals such as the parents and school staff to determine the facts.

Filing a Complaint with the State Education Agency

            A complaint may be filed by an individual or an organization. The complaint must be written and signed and contain the following information:

(1)  A statement that the public agency has violated the IDEA. Public agencies include school districts, charter schools, the State Education Agency, and other agencies responsible fro providing education to children with disabilities;

(2)  The facts that support the above statement that the public agency violated the IDEA;

(3)  The signature and contact information of the person making the complaint; If the complaint is regarding a specific child then the complaint must include:

1.      The child’s name and address;

2.      The name of the school the child attends;

3.      If the child is homeless the available contact information for the child and the name of the school the child attends;

4.      A description of the problem including facts describing the problem; and

5.      A proposed resolution of the problem to the extent the person filing the complaint knows of a possible resolution of the problem.

Complaint Timelines

            Complaints must assert or allege a violation of the IDEA that has occurred within a year of when the complaint is received by the State Education Agency. Moreover, a copy of the complaint must be sent to the school district or other public agency serving the child at the time the complaint is filed with the State Education Agency. Generally, the IDEA requires that complaints to the State Education Agency be investigated and resolved with 60 days. But that time limit can be extended in exceptional circumstances.

            Finally, the IDEA provides that the State Education Agency may allow complaints to be the filed first with the local school district and the school district’s decision reviewed by the State Education Agency.  In that event, the local school district, rather than the State Education Agency, would conduct the initial investigation. The State Education Agency would then review the school district’s decision regarding the complaint. So, parents and other professionals should check with their State Education Agency to determine how the complaint process works in their state. 

     Summer is rapidly approaching. For most children summer means time off from school. But for some students with disabilities, interrupting their school program during the summer break, jeopardizes the benefit they receive from that program during the regular school year. These students need services during the summer to receive a free appropriate public education. Services provided in the summer are called extended school year services or ESY services. Extended school year services are special education and related services that are provided to a child with a disability beyond the normal school year of the school district.  

     The first court cases requiring ESY services involved students with disabilities who, during the summer, lost skills they had learned during the previous school year. As a result of this loss of skills during the summer, the students were unable to benefit from their school program. These cases established a regression/recoupment standard for establishing the need for ESY. The student lost skills during the summer, or regressed, so significantly that the student could not reasonably make up, or recoup, that loss the following school year.           

   The courts noted that all students regress some during extended absences from school. Most students can make up that loss, in a reasonable amount of time, when they return to school. If it takes a student with a disability significantly longer to make up the loss, that student may be entitled to extended school year services. Thus, students who regressed that significantly were entitled to services during the summer as part of receiving a free appropriate education.    

       Later court decisions  allowed students to receive ESY services without first being out of school during the summer months. If the IEP team could predict that the student was likely to regress, ESY services could be included on the IEP. Planning teams could look at how the student performed after being out of school during holidays or illnesses. Based on how the student performed upon returning to school, the IEP team could predict whether the student would be eligible for ESY.  

     More recent court cases include factors, other than just regression/recoupment, in determining ESY eligibility. The Tenth Circuit Court of Appeals, in Johnson v. Independent School District No. 4, included factors such as:

·        the degree of the student’s impairment and the ability of the student’s parents to provide educational structure at home,

·        the student’s rate of progress, the student’s behavioral and physical problems,

·        the availability of alternative resources,

 ·        the ability of the student to interact with students without disabilities,

·        the areas of the student’s curriculum which need continuous attention,

·        the student’s vocational needs.            

  The Court in Johnson also looked at whether the service being requested for extended school year was extraordinary to this particular student or was an integral part of a program for students with this disability. If the service was an integral part of the program for students with this disability, it could be required to be provided during the summer.  

      Under the IDEA 2004 extended school year services must be provided only if a student’s IEP team determines, on an individual basis, that extended school year services are needed for the student to receive an appropriate education. The school district may not: (1) limit extended school year services to students with particular categories of disability; or (2) unilaterally limit the type, amount, or duration of the extended school year services. Additionally, since extended school year services are part of providing a free appropriate public education, the services must be provided according to an IEP and at no cost to the student’s parents.   

    Extended school year services are not intended to continue the progress the student made during the normal school year through the summer. Rather, extended school year services are required to prevent jeopardizing progress the student has already made during the normal school year. Parents who believe their child may need ESY services should make sure this topic is discussed at the IEP meeting. If the student has not already been out of school for a summer, parents should make sure the student’s teachers are tracking the student’s performance after school holidays and absences. This information will be needed to predict future regression.

       Sometimes individuals are intimidated or harassed because they are trying to enforce or help others to enforce the right to be free from disability based discrimination under Section 504 and  the Americans with Disabilities Act (ADA). Both of these laws protect individuals with disabilities from discrimination. Additionally, these laws prohibit retaliation against a person with a disability (or persons who are acting on behalf of a person with a disability) for trying to enforce their rights under these civil rights laws. Individuals with disabilities and their families are often dependant on service providers such as schools and others for their services. Individuals are often reluctant to question how services are delivered because they fear they will face a reduction or termination of services as payback.

     The anti-retaliation provisions of section 504 and the ADA help allay that fear of payback so that individuals are not as afraid to enforce their rights or the rights of their family members and associates with disabilities.  The anti-retaliation provisions of Section 504 (note Section 504 applies the retaliation protections in Section 102 of Title I of the Civil Rights Act of 2004) and the ADA is very broad. It is a violation of Section 504 and the ADA to intimidate, threaten, coerce, or discriminate against an individual who has engaged in a protected activity. Protected activities include filing a complaint, testifying, assisting in, or participating in an investigation or hearing under Section 504 or the ADA. The key elements in a complaint for retaliation are:

1.     The person making the retaliation claim engaged in a protected activity (they asserted a right, filed a complaint, testified, assisted or participated in an investigation or hearing under Section 504 or the ADA);

2.     The entity that it is alleged to have retaliated knew the person engaged in a protected activity;

3.     That entity took some action against the individual making the complaint and that action was at the same time that individual engaged in the protected activity; and

4.     A causal connection can be reasonably inferred between the retaliatory action taken by the entity and the person engaging in the protected activity. 

     Sometimes mediation, the resolution session, or other efforts do not resolve the dispute and parents or the school district still wish to have a due process hearing. In order to have a hearing, the side requesting the hearing  must have filed a due process complaint notice with the other side in the hearing.  

Timeline for requesting a hearing 

     The IDEA 2004 established a two year timeline for requesting a hearing. Generally, the parent or the school district must request a hearing within two years of the date the parent or district “knew or should have known” about the violation that is the basis for the hearing request.  This timeline, however, will not apply to a parent if the parent was prevented from requesting a hearing because (1) the school district specifically misrepresented that it had resolved the problem, or (2) the school district withheld information from the parent that the district was required to give the parent.

     Finally, the IDEA’s two year timeline will apply unless the state has its own explicit timeline for requesting a hearing. Thus, parents, advocates, and attorneys should always check to their state’s laws and regulations.  

Qualifications of the hearing officer 

     The hearing will be heard and the dispute decided by an impartial hearing officer.  The hearing officer must be qualified and impartial. In order to be considered impartial, the hearing officer cannot have a personal or professional interest that conflicts with their objectivity at the hearing. Thus, the hearing officer cannot be an employee of the State Education Agency or the local education agency (school district) that is involved in the care or education of the student or have other interests that would affect their objectivity. 

      To be qualified, the hearing officer must know and understand the IDEA, its regulations, and legal interpretations of the law and regulations by the courts. The hearing officer must also know how to conduct hearings and be able to make and write decisions according to standard legal practice. 

Rights in the Hearing Process 

     Both sides to a hearing, parent and school district, have the following rights in the hearing:

• the right to be accompanied and advised by a lawyer and by individuals with special knowledge or training with respect to the problems of children with disabilities;

• the right to present evidence and confront, cross examine, and compel the attendance of witnesses;

• the right to prohibit the introduction of any evidence that has not been disclosed at least five business days before the hearing;

• the right to a written, or at the option of the parents, electronic verbatim record of the hearing;

• the right to written, or at the option of the parents, electronic findings of fact and decisions.     

    As yet another way to resolve disputes before a due process hearing, the IDEA 2004 added a resolution process. Once a due process complaint notice is filed, the school district is required to convene a resolution meeting between the parents and the relevant members of the IEP team. The purpose of the resolution meeting is for the parents to discuss the due process complaint and give the school district an opportunity to resolve the dispute.

     The relevant members of the IEP team are those members of the team who have specific knowledge about the facts identified in the due process complaint. The parents and the school district will mutually determine which members of the IEP team are relevant. Additionally, the meeting must include a representative of the school district who has the authority to make decisions on behalf of the school district.  

      The meeting, however, may not include an attorney representing the school district unless the parents bring an attorney to the meeting. So, the parents have an opportunity to meet with school staff without the school district’s attorney being present. If parents choose to bring an attorney to the resolution meeting, then the school district may also bring its attorney.  

     Moreover, should parents choose to be represented by an attorney at the resolution meeting, the parents may not be awarded attorneys’ fees for their lawyer’s time  attending the meeting. The resolution meeting is required unless the school district and the parents agree in writing to waive it or the two sides agree to use mediation instead. If the dispute is resolved through the resolution meeting, the parents and the school district will develop and sign a written settlement agreement. Similar to the mediation agreement, the resolution settlement agreement is enforceable in State court or United States district court. But, either the parents or the school district have three business days after the agreement is signed to void, or get out of, the agreement.  

     Finally, from the parent’s perspective, the resolution session is essentially another IEP meeting but, perhaps, without the school district’s attorney. On the other hand, the mediation process involves an outside person, the mediator, who can help facilitate resolving the dispute. For that reason, parents and the school district might choose to use the mediation process instead of the resolution process. Using either process will be beneficial if disputes are resolved without the need for a due process hearing.

 The last post began a short series of articles on dispute resolution under the IDEA 2004. That article ended with the requirements for filing a due process complaint notice. This post covers mediation and next week’s post will cover the new resolution process.

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       Mediation is a process in which an objective and impartial third party (the mediator) works with both sides of a dispute to help them reach an agreement to resolve the dispute. Unlike a hearing officer, the mediator does not weigh evidence and resolve legal issues. Under the IDEA, the mediator’s job is to help the parents and school district reach an agreement. In that process the mediator will meet with each side to the dispute, separately or together (depending on the style of the mediator) and try to resolve disagreement.

       For the mediation process to work, the participants need to be able to speak freely. Thus, the discussions that occur in mediation under the IDEA are confidential.  Prior to the IDEA 2004, mediation agreements resolving special education disputes were not legally binding. The agreements were voluntary and each side relied on the other’s good will to comply with the agreement. Congress, however, received comments that since mediation agreements could not be legally enforced, parents and school districts were sometimes reluctant to use the process. Thus, in the IDEA 2004, Congress required that if an agreement is reached in mediation, it can be enforced in State court or a United States district court.  

Mediation can be used to resolve any special education issue, including issues that occur before a due process complaint notice is filed. So, mediation can be used to resolve disagreements without requesting a due process hearing or it can be used to settle disputes after a hearing has been requested. Moreover, to encourage mediation, the IDEA requires that the state education agency  maintain a list of qualified mediators and bear the cost of the mediation process.

So, mediation does not cost the parents or the school districts other than their time in the mediation. Mediation is voluntary and both parents and the school district must agree for the mediation to occur. Additionally, the state education agency must assure that mediation is not used to deny or delay a parent’s right to a due process hearing. Thus, by agreeing to mediation neither the parents nor the school district give up the right to pursue a due process hearing if the mediation is unsuccessful.

      Finally, while this article focuses on resolving disputes regarding children with disabilities under Part B of the IDEA (services for children aged three to twenty-on), mediation can also be used to resolve disagreements under Part C (services for infants and toddlers from birth through age two).  

My posts this week and next week will cover the IDEA 2004 formal procedures for resolving disputes prior to a due process hearing. This week I’ll cover the due process complaint notice and next week discuss mediation and the resolution process. A subsequent post will cover the due process hearing.   

Since 1975 the Education for All Handicapped Children Act (now the Individuals with Disabilities Education Act or IDEA) has provided parents the right to a due process hearing to resolve disagreements over special education services to children with disabilities. A due process hearing is a very formal procedure to resolve disputes. In a due process hearing an impartial hearing officer (IHO) makes a decision in favor of the parents or the school district after each side has presented evidence at the hearing. Parents and school districts have very specific rights or safeguards in due process hearings including the right to present evidence and to be advised by an attorney. 

      Thus, due process hearings, similar to a trial, are formal, can be costly, adversarial, and time intensive. To avoid the cost, time, and stress of due process hearings, parents and school districts resolve most special education disputes before they go to a hearing. In fact, in 2003 the General Accounting Office (GAO) issued a report stating that because most due process hearing requests are withdrawn or the parties settle the dispute before the hearing, the number of special education hearings nationally was low. For example, in the year 2000 the GAO found that there were only about 5 hearings per 10,000 special education students. In 2004, to further encourage resolving special education disputes, Congress amended the IDEA by adding to the dispute resolution process a due process complaint notice, a resolution process, and made mediation agreements legally binding.  

 Due Process Complaint Notice

      The IDEA requires that whenever a party, either a parent or a school district, wishes to request a due process hearing to resolve a special education dispute, they first must provide the other side with a due process complaint notice. The due process complaint notice tells the school district (or the parent if the school district requests the hearing) who the student is, the school the student attends, what the issues are, and suggests ways to resolve the dispute. As the IDEA 2004 was being drafted, some school administrators commented to Congress that districts frequently received requests from parents for a due process hearing when the districts were unaware that a dispute even existed.