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2001 Opinions

Date:   May 7, 2001
Prepared By:   James A. Robinson
Phone:   (850) 488-7707
Suncom:   278-7707
Opinion No.:   01-07
Staff Contact:    
MEMORANDUM OPINION
TO: Frederick Koberlein, Columbia County School Board Attorney
FROM: James A. Robinson, General Counsel
SUBJECT: Revision to Model Notice of Procedural Safeguards
RE: Letter Dated April 5, 2001

QUESTION PRESENTED: Does the Department's Model Notice of Procedural Safeguards comport with applicable law?

CONCLUSION: Yes.

DISCUSSION: Thank you for your letter on behalf of the Columbia County School District wherein you requested a change to the Department's Model Notice of Procedural Safeguards. After a careful review of your concerns and the related law, the Department has determined that the Model Notice comports with the law and affords the appropriate protection of parental and school district rights. Therefore, the notice will not be changed. To provide further assistance to you as counsel for a school district, I will explain the relevant legal provisions, and the specific procedures and penalties which are available to school districts, which may help them overcome any perceived initial disadvantage.

The Model Notice's language comports with the language in Section 300.507(c) of Title 34 of the Code of Federal Regulations (C.F.R.), which specifies the requirements for parent notice to the public agency as follows:

  1. General. The public agency must have procedures that require the parent of a child with a disability or the attorney representing the child, to provide notice (which must remain confidential) to the public agency in a request for a hearing under paragraph (a)(1) of this section.
  2. Content of parent notice. The notice required in paragraph (c)(1) if this section must include- -
    1. The name of the child;
    2. The address of the residence of the child
    3. The name of the school the child is attending
    4. A description of the nature of the problem of the child relating to the proposed or refused initiation or change, including facts relating to the problem; and
    5. A proposed resolution of the problem to the extent known and available to the parents at the time.
  3. Model form to assist parents. Each SEA shall develop a model form to assist parents in filing a request for due process that includes the information required in paragraphs (c)(1) and (2) of this section.
  4. Right to due process hearing. A public agency may not deny or delay a parent's right to a due process hearing for failure to provide the notice required in paragraphs (c)(1) and (2) of this section."

The language in bold above is the operative wording which the Department relied upon in its development of the language used for the public in the Model Notice. The mandatory notice cannot be restricted solely to the use of a model form; rather, the requirement is as general and as broad as possible for the parents to file a request for a due process hearing, presumably without the assistance of an attorney, if they so wish.

Further evidence regarding this analysis, and the pivotal concept that the IDEA and its implementing regulatory framework did not intend to allow a parental failure to use the model form or to provide the specific information to block or restrict the parents' right, is found in Section 300.513(c)(4)(iv) of Title 34, C.F.R.. This provision says that a court can reduce the amount of attorneys' fees awarded to prevailing parents if the court finds that "The attorney representing the parent did not provide to the school district the appropriate information in the due process complaint in accordance with Sec. 300.507(c)." Thus, the IDEA specifically anticipates a parental failure to provide the requested information, and has provided a hefty penalty for such actions, should the responding school district seek a reduction in fees on that basis. Thus a due process hearing can and must proceed even when the parents have failed to provide "the requested information," whether it be via a model or in a general request for a hearing.

However, even though the model notice should not be changed to mandate the parental use of a model notice or the provision of specific information in a due process request, the school district's attorney has two significant methods for dealing with any initial difficulties which may result from an overly broad hearing request. First, an attorney could file a motion with the administrative law judge (ALJ) asking for an emergency pre-hearing conference to clarify the parent's issues and/or motion for clarification of the issues. An ALJ will want to have the parent's parameters defined as early as possible so that both parties are adequately prepared andthe hearing process is conducted efficiently. Therefore, an ALJ will routinely grant such a motion for the good of all concerned. Your letter appears to be the basis for such a motion.

Second, an attorney could advise the parent's counsel in writing of the district's intention to seek a reduction of attorney's fees on these grounds, should the parents prevail. This should encourage an amendment to the petition for hearing, or some sort of pre-hearing.

Please contact me if you have any further questions or concerns in this matter.

cc: Shan Goff, Bureau of Instructional Support and Community Services

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