This is a summary of the third edition of CSNLG’s podcast Special Education Matters. In this podcast, our host Michael Boll and lead attorney Richard Isaacs discuss the rare event of a due process hearing, and what families should expect going into this trial. The podcast can be found here.

Overview of the Due-Process Hearing

  • Happens after many attempts have been made between a school district and families to find a solution that both sides can agree on, but no resolution is reached.
  • The final step that can be taken to get the district to provide the solution the family is after.
  • A trial with a witness and a testimony in which you present your case to an administrative law judge (ALJ).
  • Happens very rarely. 94-97% of cases settle before it reaches a due process hearing.

What Does the Process Look Like?

  • Held at the school district building, often in the same conference room that the mediation took place in.
  • There’ll be a table for the judge, a table for the witness, a table district, and a table for the family
  • IEPs and assessments are often submitted as evidence, in which case the assessor would be considered a witness for questioning.
  • The due process hearing is relatively informal and is an easy process to navigate for the most part. It should be thought of more as a question and answer session. While there are inevitably rules on how to enter evidence to take it under submission for the court, there’s still a lot of flexibility there.

Cross-Examination

  • Cross-examinations can often get frustrating as district councils will often interrupt and object and make it more difficult for the witness and the family.
  • In spite of this, the ALJs are typically helpful in quieting that and making the process easier.
  • It’s important to remember that our objective is to get the facts and information out – we have nothing to hide. When the district continues to object, it’s usually when they’re afraid of that information getting out to the judge.
  • Students almost never testify as a witness.
  • Parents almost always testify. This isn’t too scary because the objective is really just to tell the story of your own child to the ALJ.

What’s the Time Span of the Hearing?

  • You should be able to present the entirety of your case in no longer than three days.
  • The hearing starts at 9:00 – 9:30 in the morning, depending on the day of the week.
  • The hearing runs until 4:30 – 5:00, depending on when the last witness of that day is finished.
  • Some attorneys will try to drag a hearing out – we have to pay for experts, so wasting time makes it more expensive.

How Does the Hearing Conclude?

  • The decision doesn’t come right at the end of the hearing; rather, the judge takes the case under submission
  • Documents are submitted to the judge as evidence.
  • It’s important to note that closing arguments aren’t made. The closing arguments are written. This allows everyone to take the time to look at the evidence and apply it to the law before submitting it to the court.
  • At the conclusion of the hearing, the case will remain open and the judge will give you a later due date to submit closing briefs.
  • After the closing briefs are submitted, the case is closed and new evidence can come in.
  • The court will then make a written decision usually in about 30 days after those closing briefs are submitted.
  • Unless the case is appealed, the case comes to a close at that point.

This summary is part of our complete Beginner’s Guide to the Special Education Legal Process.

 

 

 

This article is a summary of the podcast, Deciding to File a Lawsuit from the podcast Special Education Matters, with host Michael Boll and CSNLG lead attorney Richard Isaacs. The podcast can be found here. This conversation focuses on what happens when a family may decide to file a due process complaint if they disagree with the districts offer of services.

What will happen after filing a due process complaint?

Three different events can occur:

  • Resolution, followed by
  • Mediation
  • Trial/hearing

What leads to the due process complaint?

  • After an IEP has been conducted there may be outstanding issues to resolve or services expected.
  • The family and the district cannot come to agreement on what is considered a FAPE (Free Appropriate Public Education) [
  • If there is still disagreement, a due process complaint is filed.

How does the resolution process begin?

  • Once the due process complaint is filed, a resolution session must be scheduled within 15 days by the school district.
  • There is a 30 day resolution period before the trial can begin.

What happens in the resolution session?

  • In the resolution session, attorneys are encouraged not to attend.
  • If a family brings their attorney, the district can also bring their attorney, however, if the parent does not bring an attorney, the district cannot bring their attorney.
  • This provides an incentive for the district admin to discuss concerns and solutions with the parents and resolve the issues together.

Is this process helpful?

  • The resolution process may be useful, and a resolution can potentially be reached.
  • However, cases are rarely settled at the resolution session.
  • Usually, the resolution process is not helpful, and we encourage families to not begin negotiations at this stage but instead to send their settlement offer so there are no surprises for the district.

What happens in the next step, mediation?

  • Mediation is a voluntary process, but is heavily encouraged.
  • Mediation has the benefit of having mediators; typically administrative law judges (ALJs).
  • The benefit here is the mediator should understand the law.

Problems with mediation:

  • In the case of a poor mediator, where the ALJ may be incompetent or otherwise unsuitable, a successful mediation may not occur.
  • This can happen when the ALJ is known ahead of time. Agreement may occur between families and the district if the district also disagrees with the mediator — mediation will be skipped in favor of a settlement conference.
  • The bottom line is: mediation can be a waste of time without the right mediator.
  • Currently, about 60% of mediation is a waste of time; it is ineffective, inefficient, and provides an unnecessary expense for families.
  • Clients will be advised differently on how to approach mediation under different circumstances.

Benefits of mediation:

  • Mediation, in the right conditions, can lead to resolutions with more creativity — resolutions that would otherwise not be granted.

What about trials or hearings?

  • 94 percent of due process complaints do not go to hearing. They may be settled or dismissed.
  • It is important to note that clients and the district may not necessarily be opposed in the sense that they are both working to help the student succeed, but may disagree on how to do so.
  • Sometimes, when this decision goes to a judge who is unfamiliar with the student in question, the solution may be unsuitable.
  • Thus, it is important to settle the case, rather than go to hearing.

This summary is part of our complete Beginner’s Guide to the Special Education Legal Process.

 

 

Finding Solutions

This is a summary of the third edition of CSNLG’s podcast Special Education Matters. In this podcast, our host Michael Boll and lead attorney Richard Isaacs discuss how a family should find solutions to their child’s special educational needs. The podcast can be found here.

What happens when the district disagrees with your IEP?

  • Oftentimes, once we have all the outside assessments that we need, we present them in an IEP meeting, the district has its data, and it has offered what it feels is appropriate, there’s still a disagreement with the district.
  • To us, this is just the beginning of the conversations
  • Districts typically do not take risks in IEPs – they simply offer a basic level of services. However, parents can push harder for a better level of services..
  • This may be in the form of filing a due process complaint. We file for due process and we sit down for a resolution or mediation conference to try to and get the district to fund better programs.
  • Oftentimes we can get a program funded by the district, but it will be outside the IEP process, in a settlement agreement.

FAPE and ‘basic floor of opportunity’

  • FAPE: the district’s obligation to provide a Free Appropriate Public Education.
    • “Appropriate” is what’s meaningful to each particular student.
  • The district also only has to provide what they call a ‘basic floor of opportunity’.
    • This is the obligation to provide a program that allows every student to make some progress.
    • Our job is to get the district to provide much more than that basic floor of opportunity and get a much higher level of services.

Finding the Appropriate Placement

  • Oftentimes, districts never actually close the learning gap of students with special needs, for example by using RSP (resource specialist program) or SDC (special day class) programs.
    • For example, a student may be struggling academically so the district may put a student in a special day class in fourth grade. For the next four or five years, they remain in the special day class and by the time they enter high school, the student is off diploma track
    • Conversely, we have had students graduate high school reading at a second/third grade level. After pushing for intensive intervention, we have gotten them up reading past the 12th grade level after about six months.
  • Finding the appropriate solution is about identifying the specific programs (as suggested by outside assessments), and then pushing the district to provide them.
    • Often this is will happen outside the IEP, through a settlement agreement.

Do parents really need an attorney?

  • Advocates can handle it all the way up to the litigation point.
  • Advocates are also typically less expensive than attorneys. However, settlements can often include an attorney’s fees, so if you had an attorney the whole way, it would include many of the fees.
  • An advocate’s fees cannot be part of a settlement agreement. Parent’s will pay those fees out of pocket.
  • At IEP meetings, advocates shine because they often have a higher level of expertise – they know the resources of the school district better, know how to read and present assessments, and talk about goals.
  • The problem particularly with parents who go at it alone: the district will direct you towards outside assessors that they work with a lot, which often renders the recommendations meaningless and unusable.
  • Advocates or an attorney direct the family to experts that can identify what’s going on with the student.
  • At that point, if the district says, no, parents may want to contact an advocate or attorney to take the next steps.

This summary is part of our complete Beginner’s Guide to the Special Education Legal Process.

 

 

 

A Beginner’s Guide to the Special Education Legal Process

This blog is based on the first of a series of podcasts called Special Education Matters, featuring Michael and our lead attorney Richard Isaacs. Michael and Richard discuss the process that begins when a family decides to work with us. Some of this process is specific to CSNLG, but much of the information we share can be taken and applied to your own situation. We begin with the very first stage in the process, deciding to work together.

Stage 1: Deciding to Work Together

You must decide if you even want to work with and involve a law firm

  • The best way to do this is hold a conversation between us and your family to ensure everyone’s needs are met

How we enact this process at CSNLG

  1. We ask you to fill out an intake form for your information that’s on our website at CSNLG.com/intake
    1. We ask you a pretty detailed list of questions about your situation and about the situation for your son or daughter or guardian.
  2. That information is transferred to us and we work to set up a free consultation.
    1. This consultation does take a little bit of time
    2. During this time we learn whether we can help you, or if we should direct you to someone else
    3. It helps us gain an understanding of the case and helps us share with you the next steps for a typical family
    4. We try to get real information that you can use even if you don’t decide to work with us.
      1. For example, what the next steps might be and what the law says regarding your situation.
  3. We then, if you agree, send an agreement to you
    1. This agreement is called a Retention Agreement and it explains the nature of the relationship between you and CSNLG (us).out the
  4. Two additional forms are sent to you
    1. Authorization for representation
      1. Later sent to districts to inform them that you are being represented by a law firm
    2. Authorization to request records
      1. Allows us to request records from districts

This summary is part of our complete Beginner’s Guide to the Special Education Legal Process.