Daily Archives: January 27, 2016

OAH Decision: Failure to Inform Parents of Their Procedural Safeguards Extends the Time Period in Which Parents May File a Due Process Complaint


Author: Heather Edwards, Attorney at Law 

In Aveson Charter Schools, et al. (OAH No. 2015021006), the California Office of Administrative Hearings held, among other things, that an exception to the two-year statute of limitations applied to claims against the school due to its failure to provide the student’s parents with a copy of their Parent’s Rights and Procedural Safeguards.

Parents filed their due process complaint on February 19, 2015 alleging that the school had denied their child a free appropriate public education between September 2011 and December 2014. The school argued that the two-year statute of limitations should bar all of the claims arising prior to February 19, 2013.

A request for a due process hearing “shall be filed within two years from the date the party initiating the request knew or had reason to know of the facts underlying the basis for the request.” (Ed. Code § 56505(l)) The two-year limitations period does not apply to a parent if the parent was prevented from requesting the due process hearing due to either: 1) specific misrepresentations by the local educational agency that it had solved the problem forming the basis of the due process hearing request; or 2) the withholding of information by the local educational agency from the parent that was required to be provided to the parent under special education law. (Ibid.; 20 U.S.C. § 1415(f)(3)(C)(D).) Invoking the exceptions to the statute of limitations requires a showing that the local educational agency’s misrepresentation or withholding of information caused the failure to file the due process complaint on time. Thus, where the evidence shows that the parents were fully aware of their procedural options, they cannot excuse a late filing by pointing to the school’s failure to formally notify them of those options. (D.K v. Abington School Dist. (3rd Cir. 2012) 696 F.3d 233, 246-247.)

The IDEA requires that local educational agencies establish and maintain procedures to ensure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of FAPE by such agencies. (20 U.S.C. § 1415(a).) A copy of the notice of a parent’s or guardian’s rights shall be attached to an assessment plan. A written explanation of all the procedural safeguards under the IDEA shall be included in the notice of a parent’s or guardian’s rights. (Ed. Code § 56321(a).) A copy of the procedural safeguards must be given by a local educational agency to a particular parent of a child with a disability a minimum of once a year, except that a copy shall be given to the parents: 1) upon initial referral for assessment or parent request for assessment; 2) upon filing a request for a due process hearing; 3) in accordance with certain discipline procedures; or 4) upon parent request. (20 U.S.C. § 1415(d)(1)(A); 34 C.F.R. § 300.504(a); Ed. Code § 56301(d)(2). In addition, Education Code section 56500.1, subdivision (b) requires that parents be informed about procedural safeguards at an IEP team meeting.

Here, the school failed to provide Parents with a copy of their parental rights and procedural safeguards upon Parents’ initial request for assessment in fall 2011 and at Student’s initial IEP team meeting on March 22, 2012. The first time Parents received a copy of their procedural rights from any of the Respondents was in December 2014. While the school claimed it was their practice to provide a copy of parental rights and procedural safeguards during IEP team meetings, none of their witnesses could specifically recall that a copy was, in fact, provided to Parents at the March 2012 IEP team meeting. Furthermore, none of the school’s witnesses persuasively explained why Parents were not specifically asked during the IEP team meeting to initial the space on the IEP acknowledging receipt of the procedural rights if such document had, in fact, been provided to Parents at that meeting.

The hearing officer also concluded that the failure to provide Parents with their procedural rights and safeguards prevented Parents from timely filing the request for due process hearing. Parents were unaware of their procedural options until June 2014 when they consulted with counsel. Parents had never before been through the IEP process, were unfamiliar with the IEP procedure and were unaware that any recourse was available to them to challenge the eligibility determination or the school’s assessment until June 2014. Although Mother had a 20-minute one-time free telephone consultation with an advocate in August 2011, the advocate did not discuss with Mother her procedural rights and safeguards other than to tell Mother about her right to an initial IEP and that the school had to respond to her request within a certain period of time. As a result, the hearing officer found the Parents’ claim to be timely.

Practice Tips:  Statutes of limitations are intended to encourage the resolution of legal claims within a reasonable amount of time. However, when local educational agencies fail to provide parents a notice of procedural safeguards, or fail to properly document providing parents the notice, it significantly increases exposure to liability for special education claims. It is critical that educational agencies have processes in place to show that staff members actually provided parents notice of their procedural safeguards, including:

  • Train staff on the importance of this requirement;
  • Ask parents to sign/initial a form during the IEP meeting indicating they received a copy;
  • Note receipt of the notice in IEP meeting notes; and
  • Post a copy of parents’ procedural safeguards on local educational agencies’ website.