Are you the parent 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 it was reauthorized, in the area of ​​procedural violations, and explain what you as a parent need to know about this change.
A procedural violation means that the school district did not follow the specific procedures required by IDEA. For example: IDEA requires that parents be equal participants in Individual Education Plan (IEP) meetings for their child. If the special education staff refuses to allow the parent to give her opinion, this would be a procedural violation. Or if the deadlines for testing 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 could determine that a child had been denied a Free Appropriate Public Education if procedural violations occurred. Things you should know about the change:
1. IDEA now states that any procedural violation must be substantial, or, in other words, substantial. The procedural violation must rise to the level of preventing the child from receiving a free appropriate public education (FAPE).
2. There are 2 ways a school district procedural violation rises to the level of denying the child FAPE. Is it so:
A. The violation materially impeded the parent’s opportunity to participate in the decision-making process regarding the provision of FAPE to the student or
B. The violation caused a 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 held that it’s not enough for parents to just attend the IEP meeting, they must have “meaningful participation!” One court was very clear that if a district rejects a parent’s specific recommendation for placement or need for services, regardless of evidence that the placement and services are appropriate for the child and will meet the child’s needs. child’s educational rights, this may result in a prosecution violation that denies the child FAPE.
In a well-known special education case, the school district refused to provide a child with Applied Behavioral Analysis (ABA), even though there was plenty of evidence that the child needed it. Special education staff were ecstatic with the boy’s progress in the private ABA program, but refused to pay for him. The court in that particular case stated that the school district was not going to agree to the parent’s ABA request, no matter what. Thus, parents were prevented from meaningfully participating in the development of their child’s IEP, and this denied their child’s FAPE; which 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’s doable. If the school district refuses to hear from parents about a related service their child needs and avoids FAPE, then this would be a deprivation of educational benefit.
Another example would be if a parent had an Independent Educational Evaluation (IEE) indicating that their child needed a multi-sensory 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 of the child and could be a denial of FAPE.
While this change has made it a bit more difficult to prove a denial of a free appropriate public education in due process, it makes it a bit clearer for parents as they build their case. Good luck and remember that your child depends on you!