Lessons Learned from Due Process - PowerPoint Presentation

Slide1

Lessons Learned from Due Process

Sarah Loquist,

SCAESIC #618 General Counsel

Panel Members:

Dr. Christy Skelton, SCAESIC #618 Assistant Director

David Jennings, USD 266 Principal

Mike Lowers, CKCIE Director

Curtis Stevens, USD 305 Principal

Slide2

Spotting the Iceberg Before Impact

Slide3

Grieving the Loss

Shock, disbelief, anxiety, fear, despair

Similar to trauma of a death

Disappointment

Feel alone and isolated

Incomprehensible disparity

Grieve dreams for lost child

expected

Slide4

Denial of Disability

Denial

Anger

Fear

Guilt

Confusion

Powerlessness

Disappointment

Rejection

Center

for Parent Information and Resources (10-6-16). You are not alone: For parents when they learn their child has a disability, Newark, NJ, McGill Smith, P.

Slide5

Conflict with Staff

Slide6

Student-Based Decision Making

Losing

Ground by Conceding

Parent Refusal to

Agree

Keep Team Focused on Needs of the Student

Slide7

Try Breaking the Ice

Slide8

Compromises that KeepFAPE & LRE Intact

Use

your staffing meetings for strategic planning

What compromises can you offer the parents that will not impair FAPE for the student

?

FAPE means

special education

&

related services that—

Are

provided at public expense, under public supervision and direction,

&

without charge;

Meet

the standards of the

SEA;

Include

an appropriate preschool, elementary school, or secondary school

education;

and

Are

provided in conformity with an individualized education program (IEP) that meets the requirements of §§ 300.320 

through 300.324

.

LRE means

(

i

) To the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are nondisabled;

and (ii

) Special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.

Slide9

Compromises that KeepFAPE & LRE Intact

Evaluations – Can be helpful when parents want additional services, typically costs much less to do evaluation than to fight

Use of Outside Evaluators – May be useful with parents who do not trust school personnel

Independent

Educational Evaluation – 34 C.F.R. §

300.502

Parents only get 1 each time the agency conducts evaluation with which parents disagrees

Either provide IEE or file due process to defend your evaluation

Parent-initiated evaluation: Have to consider

Slide10

Appeasing the Parent & Potential Impact

Pros

Avoids conflict

Everyone happy

Cons

Appeasement can’t continue forever

Runs risk that student won’t receive FAPE

How

will staff answer to this on

the witness

stand

in due process or

in a

formal complaint

response?

Focus must remain on the student’s needs

Slide11

Requests for Private Placement

34 C.F.R. §

300.325 – Placement by School

Before private school placement, must have IEP meeting

Must have rep from private school present

After placement, IEP meetings can be called and held by private school at discretion of school district, but school district remains liable for compliance

Slide12

Requests for Private Placement

34 C.F.R. §

300.148 – Placement by parents

If disagree re FAPE, parents can seek reimbursement through due process if HO finds that FAPE was not made available & that private school placement is appropriate

Reimbursement can be reduced or denied if (1) parents did not reject school placement at most recent IEP meeting; OR (2) did not give written notice of intent to remove student at lest 10 business days in advance; OR (3) school gave notice of intent to evaluate & parent did not make child available; OR (4) there is a judicial finding of unreasonableness re parent’s actions.

Slide13

Sounding the Alarm! When Impact

Can’t Be Avoided

Slide14

Mediation

Can be utilized at any time – not just after due process has been

filed

Usually win-win

Not

cost prohibitive with

staff, money, or

resources

Provided free of charge by the state

Often more effective because neutral third party who understands the law is explaining offers to the

parents

34 C.F.R. § 300.506

Slide15

Resolution – 34 C.F.R. § 300.510

Required by

statute – within 15 days of complaint

Delays start of the 45 day due process time period

Can be used to reach agreement and avoid hearing, but often not effective due to trust

issues

Often requires participation of entire IEP team

Resolution can be waived by agreement of BOTH parties or can agree to use mediation instead

Still need to develop a written settlement agreement

District attorney CANNOT attend unless parent attorney attends so you will need to work with attorney in advance or by phone/email during meeting to come up with settlement agreement

Remember – agreement can be voided within 3 business days by either party per regulation

Include dismissal of due process case as part of agreement!

Slide16

Due Process

Can be filed by either party, but most frequently filed by parents

Have to send letter with list of hearing officers within 5 business days

Sufficiency of complaint – if contested, must notify HO and other party within 15 days of receipt

LEA Response to Due Process Complaint – unless LEA has already sent a prior written notice on the issues raised in the complaint, must submit response to parents & HO within 10 days of receipt of complaint

HO usually not appointed yet. Send copy after appointment.

Slide17

Due Process

By statute, to be completed within 45 days, but can be extended by hearing officer for good cause (except for expedited hearings which must be completed within 20 days) – usually extended

Can be very costly

District has to pay for hearing officer and for transcripts for hearing officer & parents

HO has 10 days after close of hearing to issue decision – usually won’t close hearing until after receive proposed findings of fact & conclusions of law

Slide18

Due Process

After HO decision, either party can appeal to state review officer by filing notice of appeal within 30 days with commissioner of education. KSA 72-974(b). Appeal is based upon the record. Very rare that additional evidence is allowed.

State review officer’s decision can be appealed to state district court or federal district court. Special education case law is federal so federal court is best.

Student remains in stay-put pending appeal unless parties agree otherwise.

Slide19

Formal State Complaint

Instead of filing for due process, parents can file an administrative formal complaint with the state

State Department of Education assigns investigator

Submit response with documentation

Investigator issues

decision

If found to be out of compliance, corrective action is

ordered

Can

stipulate to some/all issues and offer self-created corrective actions

Slide20

Office for Civil Rights Complaint

Another administrative remedy available to parents which does not cost them anything

Although OCR does not have jurisdiction over IDEA issues, OCR will often use Section 504 to pursue the issue instead

While there is no cost to parents, this will involve substantial time and resources on behalf of the district. Call your friendly KASB attorney for assistance if you get one of these!

Slide21

Sailing Your Lifeboat to Dry Land: Starting Over Again

Slide22

Rebuilding Your Ship

Can’t

hold parent actions against student

Must remain professional with parent

Consider reassigning staff members who have difficulty maintaining professional relationship with

parents

If student is at or near a natural change, such as moving to a new grade level, consider assigning new staff members to positions for which the parents have held the most animosity

If you do this, make your choices wisely. Do NOT assign a brand new staff member to work with difficult parents unless you want to run the staff member off.

Slide23

Questions???

Sarah

Loquist –

sloquist

@sped618.org

THANK YOU FOR COMING!!!