Special Education Due Process and Procedural Violations – 2 Things to Know!

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 the 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 the Individual Educational Plan (IEP) meetings for their child. If the special education staff refuses to allow the parent to give her input, this would be a procedural violation. Or if timelines 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 find that a child had been denied a Free Appropriate Public Education if procedural violations occurred. Things to know about the change:

1. IDEA now states that any procedural violation must be material, 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 that a violation of school district procedure rises to the level of denying a child a FAPE. They are:

A. The violation significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to the student or

B. The violation caused a deprivation of educational benefit.

I’d 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 is 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 specific recommendation for parental 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 educational needs of the child, this may result in a violation process that denies the child FAPE.

In a well-known special education case, the school district refused to provide a child with Applied Behavior Analysis (ABA), even though there was ample evidence that the child needed it. Special education staff were ecstatic about the boy’s progress in the private ABA program, but refused to pay for it. The court in that particular case stated that the school district was not going to agree to the parents’ ABA request, no matter what. Thus, the parents were prevented from meaningful participation in the development of their child’s IEP, and this negated their child’s FAPE; which made the school district responsible for paying for the program.

2. Denial of educational benefit is a bit more difficult to prove, but I think it is doable. If the school district refuses to listen to 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) stating 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 educational benefit to the child and could be a denial of FAPE.

While this change has made it a bit more difficult to prove the denial of a free appropriate 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 depending on you!