Parental Legal Rights & Responsibilities, Procedural Safeguards

1. LEGAL LESSONS:

Procedural Safeguards, Parent Notice, and the "Supremacy Clause"

* PROCEDURAL SAFEGUARDS *

When Congress enacted the IDEA, they included a system of "procedural safeguards" to protect the rights of children with disabilities and their parents. These "safeguards" are designed to protect the child's right to a free appropriate education. To be effective advocates, parents must learn bout their rights and responsi-bilities. Do you understand your rights and responsibilities?

* PARENT TIP *

Contact your state department of education or visit their web site. Request that they send you all available 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, parents 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 don't take these steps, they may lose their right to reimbursement for the private placement – even if the public school placement was inappropriate. School districts are using this new requirement as a tactic to avoid reimbursing parents for private placements. Do you know the answers to these questions?

When does the clock begin to run on the parental notice requirement? What triggers the 10-day notice requirement? Does the clock begin to run when parents apply to a private school? Or when parents investigate private schools? Does the clock begin to run when parents submit an application to a private school? Or, when parents pay a deposit? Does the clock begin to run when the child is accepted at the private school? Does the clock begin to run when the child is removed or withdrawn from the public school program?

* SUPREMACY CLAUSE *

What happens when a state statute conflicts with a federal statute like the IDEA? Which statute controls? Why? What is the supremacy clause? A new case from Maryland gives answers to these questions.

2. NEW CASE!

SARAH M. V. WEAST (S. D. MD. 2000)

On July 28, a Maryland court issued a decision in SARAH M. V. WEAST. Here is a summary of the facts in this case:

In SARAH M., the parents of a child with multiple disabilities were dissatisfied with their daughter's lack of progress in her special education program. Results of an independent evaluation convinced the parents that Sarah needed more intensive services than she was receiving in the public school program. The evaluator suggested two courses of action. The parents should continue to work with the IEP team in an effort to get an appropriate program for Sarah. The parents should also look into placing Sarah in a private school for children with disabilities. The parents followed this advice.

In May, after investigating private schools in their area, the parents reserved a spot for the following school year. To keep their options open, the parents continued to negotiate for more intensive services with the IEP team. On July 8, after the school year ended, the parents wrote a letter and advised the school of their "intention to enroll Sarah in a private school at public expense beginning September 1998."

The school's position was that the parents "removed" Sarah from school in May, when they reserved a spot for her at the private school. The school claimed that they were "off the hook" because the parents didn't give notice 10 days before they applied to the private school.

The parents' position was that since Sarah attended public school until the school year ended in June, she was obviously not "removed" from the public school program in May. The parents claimed that their July 8 letter satisfied the 10-day parent notice requirement.

Citing Maryland law, the Administrative Law Judge sided with the school district. On July 28, Judge Messitte reversed the Administrative Law Judge. Why? To get answers to these important questions, read this new decision in the Law Library:

http://www.wrightslaw.com/law/caselaw/MD_sarahm_weast_00_0728.pdf

(NOTE: To read this decision, you must have Adobe Reader software on your computer)

3. RESOURCES:

LEARN ABOUT PROCEDURAL SAFEGUARDS

Here are some resources that will help you learn about the Procedural Safeguards designed to protect your child's right to a free appropriate public education (FAPE).

1. The Procedural Safeguards section in the IDEA statute with commentary by Pete:

http://www.wrightslaw.com/law/code_regs/20USC1415.html

2. Appendix A to the federal regulations includes valuable information about rights and responsibilities:

http://www.wrightslaw.com/law/code_regs/IDEARegs_AppendixA.htm

3. Our book, WRIGHTSLAW: SPECIAL EDUCATION LAW (ISBN: (ISBN: 1-892320-03-7) answers 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, and how to use tactics and strategies.

To learn more about WRIGHTSLAW: SPECIAL EDUCATION LAW – and how to download FOUR FREE CHAPTERS – go to http://www.wrightslaw.com/bkstore/ourbooks/Wrightslaw_Sped_Law.htm

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

http://www.wrightslaw.com/advoc/guest/howey_advice.htm

5. Parent attorney Sonja Kerr offers valuable "tips" to help you handle stonewalling at school meetings:

http://www.wrightslaw.com/advoc/guest/Kerr_Meetings_Progess.htm

Ed Note: I don't often interject my personal opinion, but www.wrightslaw.com is one of the, if not the premier source of legal information for special education scenarios. Peter Wright, Esq. Is the attorney who brought the case of Shannon Carter before the US Supreme Court. Shannon was not receiving a Fair and Appropriate Education from her local public school so her parents enrolled her in a private school specializing in children with learning differences. The court case Peter presented showed how Shannon was not advancing in the public schools, in spite of their efforts, but did advance in this private school thus demonstrating the ineffectiveness of the pubic school's program. In this landmark case, the court held the public school distric financially liable for the private school costs.

The articles published in their free Wrights Law newsletter (sent via e-mail) cannot be published in full due to space restrictions but I will publish the summaries and excerpts they have made available to help point you toward their in-depth coverage within their web site.

Pete and his wife, Pamela host the site: www.wrightslaw.com