Due process of special education and procedural violations: 2 things to know!

Are you the father of a child with a disability who receives special education services? Are you considering requesting a due process hearing on procedural violations of the Individuals with Disabilities Education Act (IDEA)? This article will explain the changes to IDEA that occurred in 2004 when you were reauthorized, in the area of ​​procedural violations, and will explain what you as a parent should know about this change.

A procedural violation means that the school district did not follow the specific procedures required in IDEA. For example: IDEA requires that parents be equal participants in the Individual Education Plan (IEP) meetings for their children. If special education staff refuses to allow parents to give their opinion, this would be a violation of the procedure. Or if the test deadlines are not followed, this would also be a procedural violation.

Before IDEA was reauthorized in 2004, when a parent requested a due process hearing, the hearing officer was able to find that a child had been denied a Free Public Application Public Education if procedural violations occurred. Things you should know about the change:

1. IDEA now declares that any procedural violation must be substantive or, in other words, substantial. The procedural violation must be raised to the level of preventing the child from receiving a free appropriate public education (FAPE).

2. There are 2 ways in which a procedural violation of the school district rises to the level of denying FAPE to the child. They are:

A. The violation significantly prevented the parents' opportunity to participate in the decision-making process regarding the provision of FAPE to the student or

B. The violation caused the deprivation of educational benefit.

I would like to discuss each of these:

1. Many school districts have tried to convince the courts that parents have participated in the IEP process if they simply attended the IEP meeting. But some courts have stated that it is not enough for parents to only attend the IEP meeting, they must have a "meaningful participation"! A court made it very clear that if a district rejects a specific recommendation for the placement or services that the parent needs, regardless of the evidence that the placement and services are appropriate for the child and will meet the child's educational needs, this It may result in a procedural violation that denies the child's FAPE.

In a well-known case of special education, the school district refused to provide a child with Applied Behavior Analysis (ABA), although there was a lot of evidence that the child required it. The special education staff was ecstatic with the child's progress with the private ABA program, but they refused to pay it. The court in that particular case stated that the school district would not agree with the parents' ABA request, no matter what. Therefore, parents were prevented from having a significant participation in the development of their children's IEP, and this denied FAPE to their children; what made the school district responsible for paying for the program.

2. The denial of educational benefit is a bit more difficult to prove, but I think it is feasible. If the school district refused to listen to parents about a related service that their child would need, and avoid FAPE, this would be a deprivation of educational benefit.

Another example would be if a parent had an Independent Educational Evaluation (IEE) that indicated that their child needed a multisensory reading program for 1 hour 5 days a week with a trained teacher, and the school district refused to listen to them. This would deny the educational benefit for children and could be a denial of FAPE.

While this change has made it a bit more difficult to demonstrate the denial of a free and adequate public education in due process, it makes it a bit clearer for parents as they prepare their case. Good luck and remember that your child is up to you!

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