"(i) If the child's parent disagrees with a determination that the child's behavior was not a manifestation of the child's disability or with any decision regarding placement, the parent may request a hearing.
"(ii) The State or local educational agency shall arrange for an expedited hearing in any case described in this subsection when requested by a parent.
"(B) Review of decision.--
"(i) In reviewing a decision with respect to the manifestation determination, the hearing officer shall determine whether the public agency has demonstrated that the child's behavior was not a manifestation of such child's disability consistent with the requirements of paragraph (4)(C).
"(ii) In reviewing a decision under paragraph (1)(A)(ii) to place the child in an interim alternative educational setting, the hearing officer shall apply the standards set out in paragraph (2)." [Section 615(k)(6)]
Placement during appeals. This subparagraph is Section 615(k)(7), the exception to the "stay-put" provision added to IDEA 97. As such, it specifies where the child's placement will be during appeal.
"(7) Placement during appeals.--
"(A) In general.-- When a parent requests a hearing regarding a disciplinary action described in paragraph (1)(A)(ii) or paragraph (2) to challenge the interim alternative educational setting or the manifestation determination, the child shall remain in the interim alternative educational setting pending the decision of the hearing officer or until the expiration of the time period provided for in paragraph (1)(A)(ii) or paragraph (2), whichever occurs first, unless the parent and the State or local educational agency agree otherwise.
"(B) Current placement.-- If a child is placed in an interim alternative educational setting pursuant to paragraph (1)(A)(ii) or paragraph (2) and school personnel propose to change the child's placement after expiration of the interim alternative placement, during the pendency of any proceeding to challenge the proposed change in placement, the child shall remain in the current placement (the child's placement prior to the interim alternative educational setting), except as provided in subparagraph (C).
"(C) Expedited hearing.--
"(i) If school personnel maintain that it is dangerous for the child to be in the current placement (placement prior to removal to the interim alternative educational setting) during the pendency of the due process proceedings, the local educational agency may request an expedited hearing.
"(ii) In determining whether the child may be placed in the alternative educational setting or in another appropriate placement ordered by the hearing officer, the hearing officer shall apply the standards set out in paragraph (2). [Section 615(k)(7)]
Protections for children not yet eligible for special education and related services.
Under IDEA 97, a child who has not yet been found eligible for special education and who has violated any rule or code of conduct could assert the protections of the Act if the LEA had knowledge that the child was a child with a disability before the behavior occurred.
"(8) Protections for children not yet eligible for special education and related services.--
"(A) In general.-- A child who has not been determined to be eligible for special education and related services under this part and who has engaged in behavior that violated any rule or code of conduct of the local educational agency, including any behavior described in paragraph (1), may assert any of the protections provided for in this part if the local educational agency had knowledge (as determined in accordance with this paragraph) that the child was a child with a disability before the behavior that precipitated the disciplinary action occurred.
"(B) Basis of knowledge.-- A local educational agency shall be deemed to have knowledge that a child is a child with a disability if--
"(i) the parent of the child has expressed concern in writing (unless the parent is illiterate or has a disability that prevents compliance with the requirements contained in this clause) to personnel of the appropriate educational agency that the child is in need of special education and related services;
"(ii) the behavior or performance of the child demonstrates the need for such services;
"(iii) the parent of the child has requested an evaluation of the child pursuant to section 614; or
"(iv) the teacher of the child, or other personnel of the local educational agency, has expressed concern about the behavior or performance of the child to the director of special education of such agency or to other personnel of the agency.
"(C) Conditions that apply if no basis of knowledge.--
"(i) In general.-- If a local educational agency does not have knowledge that a child is a child with a disability (in accordance with subparagraph (B)) prior to taking disciplinary measures against the child, the child may be subjected to the same disciplinary measures as measures applied to children without disabilities who engaged in comparable behaviors consistent with clause (ii).
"(ii) Limitations.-- If a request is made for an evaluation of a child during the time period in which the child is subjected to disciplinary measures under paragraph (1) or (2), the evaluation shall be conducted in an expedited manner. If the child is determined to be a child with a disability, taking into consideration information from the evaluation conducted by the agency and information provided by the parents, the agency shall provide special education and related services in accordance with the provisions of this part, except that, pending the results of the evaluation, the child shall remain in the educational placement determined by school authorities." [Section 615(k)(8)]
Referral to and action by law enforcement and judicial authorities. IDEA 97, consistent with OSEP's previous policy interpretations, makes it clear that agencies are not prohibited from reporting a crime committed by a child with a disability to appropriate authorities. Similarly, the law does not prevent State law enforcement and judicial authorities from exercising their responsibilities. The agency reporting the crime must ensure that copies of the special education and disciplinary records are transmitted for consideration by the appropriate authorities.
"(9) Referral to and Action by Law Enforcement and Judicial Authorities.--
"(A) Nothing in this part shall be construed to prohibit an agency from reporting a crime committed by a child with a disability to appropriate authorities or to prevent State law enforcement and judicial authorities from exercising their responsibilities with regard to the application of Federal and State law to crimes committed by a child with a disability.
"(B) An agency reporting a crime committed by a child with a disability shall ensure that copies of the special education and disciplinary records of the child are transmitted for consideration by the appropriate authorities to whom it reports the crime." [Section 615(k)(9)]
Definitions. The definitions provided in Section 615(k)(10) are critical to the interpretation and implementation of these new provisions. They are:
"(10) Definitions.--For purposes of this subsection, the following definitions apply:
"(A) Controlled substance.--The term 'controlled substance' means a drug or other substance identified under schedules I, II, III, IV, or V in section 202(c) of the Controlled Substances Act (21 U.S.C. 812(c)).
"(B) Illegal drug.--The term 'illegal drug'--
"(i) means a controlled substance; but
"(ii) does not include such a substance that is legally possessed or used under the supervision of a licensed health-care professional or that is legally possessed or used under any other authority under that Act or under any other provision of Federal law.
"(C) Substantial Evidence.--The term 'substantial evidence' means beyond a preponderance of the evidence.
"(D) Weapon.-- The term 'weapon' has the meaning given the term 'dangerous weapon' under paragraph (2) of the first subsection (g) of section 930 of title 18, United States Code." [Section 615(k)(10)]
According to the Report [to accompany S. 717], "weapon" is defined as "a weapon, device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than 2-1/2 inches in length." (Committee on Labor and Human Resources, 1997, p. 34)
On September 19, 1997, the Office of Special Education Programs, U.S. Department of Education released "Initial Disciplinary Guidance Related to Removal of Children with Disabilities from Their Current Educational Placement for Ten Days or Less," a memorandum responding to "numerous requests for guidance concerning the disciplinary provisions of IDEA ‘97" (Heumann & Hehir, 1997, p. 1). You may find this memorandum helpful in clearing up areas of confusion with respect to Section 615(k). This memorandum is provided as Resource 10-4 and could be shared with participants as a handout, if appropriate to their needs and concerns.
Now that we have exhausted all readers with this lengthy discussion of the "stay-put" provision and disciplining students with disabilities, we will turn to the final area under Procedural Safeguards: Attorneys' Fees.
IDEA 97 clarifies circumstances under which attorneys' fees can be collected and ensures that a fair cost standard is imposed. The legislation prohibits attorneys' fees and related costs for certain services. These include:
--an IEP meeting, except if ordered by an administrative proceeding or judicial action; or
--at the discretion of the State, for a mediation that is conducted prior to the filing of a complaint.
In regard to prohibiting attorneys' fees for an IEP meeting, the Committee on Labor and Human Resources (1997), in its report to Congress on the legislation, remarked:
"The committee believes that the IEP process should be devoted to determining the needs of the child and planning for the child's education with parents and school personnel. To that end, the bill specifically excludes the payment of attorneys' fees for attorney participation in IEP meetings, unless such meetings are convened as a result of an administrative proceeding or judicial action." (pp. 25-26)
The legislation also provides for a reduction of attorneys' fees, whenever the court finds that:
--the parent, during the action or proceeding, unreasonably protracted the final resolution of the controversy;
--the amount of the attorneys' fees unreasonably exceeds the hourly rate prevailing in the community for similar services provided by attorneys of reasonably comparable skill, reputation, and experience;
--the time spent and legal services furnished were excessive considering the nature of the action or proceeding; or
--the attorney representing the parent did not provide to the school district the appropriate information in the due process complaint.
These reductions do not apply if the court finds that the State or LEA unreasonably protracted the final resolution to the action or proceedings, or there was a violation of Section 615. IDEA 97's provisions related to attorneys' fees are provided in Resource 10-5. Additional language from the Report [to Accompany S. 717] (Committee on Labor and Human Resources, 1997) is presented with respect to attorneys' fees between the lines below.
Report Language with Respect to Attorneys' Fees
"Questions have been raised regarding the relationship between the extent of success of the parents and the amount of attorneys' fees a court may award. In addressing this question, the committee believes the amount of any award of attorneys' fees to a prevailing party under part B shall be determined in accordance with the law established by the Supreme Court in Hensley v. Eckerhart, 461 U.S. 424 (1983) and its progeny.
As we stated in the 1986 report accompanying the legislation that added the attorneys' fees provisions: "It is the committee's intent that the terms ‘prevailing party' and ‘reasonable' be construed consistent with the U.S. Supreme Court's decision in Hensley v. Eckerhart, 461 U.S. 424, 440 (1983). In this case, the Court held that:
the extent of a plaintiff's success is a crucial factor in determining the proper amount of an award of attorney's fees. Where the plaintiff has failed to prevail on a claim that is distinct in all respects from his successful claims, the hours spent on the unsuccessful claim should be excluded in considering the amount of a reasonable fee. Where a lawsuit consists of related claims, a plaintiff who has won substantial relief should not have his attorney's fees reduced simply because the district court did not adopt each contention raised. But where the plaintiff achieved only limited success, the district court should award only that amount of fees that is reasonable in relation to the results obtained.
(Committee on Labor and Human Resources, 1997, p. 26)
Committee on Labor and Human Resources. (1997). Report [to accompany S. 717]. Washington, DC: GPO.
Doe v. Koger, 480 F. Supp. 225 (N.D. Ind.1979).
Public Law 94-142, Education for All Handicapped Children Act of 1975.
Hehir, T. (1994, February16). Letter to Joseph I. Lieberman. Washington, DC: U.S. Department of Education.
Hehir, T. (1994, August 25). Letter to David J. Hagen. Washington, DC: U.S. Department of Education.
Hehir, T. (1994, December 16). Letter to Dianne Feinstein. Washington, DC: U.S. Department of Education.
Heumann, J.E., & Hehir, T. (1995, April 26). OSEP memorandum to Chief State School Offiers: Questions and answers on disciplining students with disabilities Washington, DC: U.S. Department of Education.
Heumann, J.E., & Hehir, T. (1997, September 19). OSERS memorandum to Chief State School Offiers: Initial disciplinary guidance related to removal of children with disabilities from their current educational placement for ten days or less. Washington, DC: U.S. Department of Education.
Honig v. Doe, 484 U.S. 305 (1988).
Mills v. Board of Education of the District of Columbia, 348 F. Supp. 866 (D.D.C. 1972).
Pennsylvania Association for Retarded Citizens v. Commonwealth of Pennsylvania, 334 F. Supp. 1257 (E.D. Pa. 1971), Consent Agreement.
S-1 v. Turlington, 635 F. 2nd 342 (1981).
Stuart v. Nappi, 443 F. Supp. 1235 (1978).
Reminder: Components of Module 10 include the background text, resources, handouts, training script, overheads in English, and overheads in Spanish. This file is the background text. The other components are provided in separate files. You can obtain these other files by returning to the Table of Contents on NICHCY's Web site and selecting the file(s) you are missing.
Some of the handouts accompanying this module are available in Spanish. See Module 12: Spanish materials.
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