In earlier podcasts in this series, we touched on some of the specific rights parents have with regard to an IEP. This show condenses all that information into one discussion so that you have a complete understanding of your rights surrounding an IEP. 

The Individuals with Disabilities in Education Act (IDEA) calls for “Free Appropriate Public Education (FAPE)” that is tailored to an individual’s needs.

Yet what does that really mean from a legal perspective?  What are its limits?

 

 

A Beginner’s Guide to the IEP #1: Overview of the IEP

This is a summary of the first edition of CSNLG’s podcast Special Education Matters. In this podcast, our host Michael Boll and CSNLG lawyer Linaja Murray provide an overview of the Individualized Educational Program. The podcast can be found here.

What is an IEP?

  • IEP: Individualized Education Program. It’s an educational program that is specifically tailored for your child.
  • Under the Individuals with Disabilities Education Act (IDEA), only students who are entitled to special education will receive an IEP.
  • There are two types of IEPs.
  1. An initial IEP. The first request for special education
  2. An ongoing IEP. This is where the student already is receiving some form of special education.

How do I request an IEP for my child?

    • A request for an IEP can start with a parent, a school administrator, or a teacher. Really, anyone involved with the child or his/her education will often request an IEP.
  • An IEP starts with a referral for assessment. Each school district has a different system set in place on how to make this referral for assessment. Check with your child’s teacher for more information.
  • Parents can write a letter to the school district that describes the situation of their child and request an assessment.

What is an assessment?

An assessment, or educational evaluation, is how schools determine how your child is functioning.

There are various areas in which a student can be assessed, ex. psychoeducation evaluations, speech and language evaluations, social-emotional, Educationally Related Mental Health Services

Receiving an assessment for your child

  • At that point, the law requires the school district to provide this assessment once it has been requested.
  • The district has 15 days to give you an assessment plan after the request.
  • The parent then reviews that assessment plan, talks with the school if they think changes need to be made, and then provides consent to the plan.
  • The district has 60 days to complete the assessments and hold an IEP team meeting to discuss whether or not the child is eligible for special education related services.
  • Typically, if the issue includes the student’s slow progress academically, a psychoeducational evaluation should be included in their assessment. Unless it is a behavioral or emotional/mental health issue.

Using your school psychologist for an evaluation

A good school psychologist who does a psychoeducational evaluation will point out areas of deficit that weren’t included for further assessment.

  • They are a good resource in adding to a student’s evaluation.
  • Oftentimes for school psychologists, this is their first job, so they typically don’t go as deep as parents would like to benefit their student.
  • If don’t have a good school psychologist, there’s a lot of resources available online from evaluators, and that can give you a good place to start.

This summary is part of our complete Beginner’s Guide to the IEP

 

A Beginner’s Guide to the Special Education Legal Process #7: Going to a Hearing

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

  • A 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 (outside of appeals)  that can be taken to get the district to provide the solution the family is after.
  • 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. Sometimes 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 for the 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 which make is much less formal than your typical civil hearing.

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 more 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 at the end of the hearing; rather, the judge takes the case under submission with a written decision being prepared about 30 days after the trial is closed.
  • 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.

 

Michael Boll, father to a son with autism and CSNLG team member, talks with attorney Richard Isaacs about going to hearing. When all other efforts to find an agreement have failed, heading to a hearing is one of he final things for a family to do.

 

 

This article is a summary of show #6, Understanding the Mediation Process, from the podcast Special Education Matters, with host Michael Boll and CSNLG lead attorney Richard Isaacs. This podcast can be found here. This conversation focuses on mediation: what it is, what happens with it, what it feels like, and how a parent should respond when it is time to do the mediation.

What is mediation?

  • Mediation is an opportunity for the district administrator (in many cases the special-education director) to sit down with a family and negotiate in the presence of a mediator.
  • Typically, the mediator is an administrative law judge (ALJ).
  • Mediation usually takes place at the school district office.

When does it happen?

  • The parties involved will mutually agree upon a mediation date.
  • Mediation typically occurs shortly before hearing (30-60 days); it is often the last official opportunity to sit down with the school district prior to going to trial.

What is mediation like?

  • Mediation is low pressure. It happens at the school district office for the most part.
  • Usually mediation starts at 9:30 AM.
  • In the first half hour, the mediator explains the process and its benefits.
  • Sometimes the parties will meet together first to review where things are with the settlement, then they will be separated into different rooms.
  • The mediator will then go back and forth between the rooms, with offers and counter-offers between the parties.
  • Typically, a good mediator will encourage and push both parties to reach a settlement.
  • Mediation is a slow process, with many steps and does not always lead to settlement.

Should an attorney be involved?

  • The purpose of mediation is to reach a settlement agreement; an attorney is important as they need to look at the language of the settlement agreement in order to make sure that the family is protected.

Why is mediation effective?

  • If a case is not settled, nothing is guaranteed going into hearing.
  • In the case of mediation, if a settlement is reached you know what you are going to get in terms of placement, services, or reimbursement.
    • For example, if there is an agreement of reimbursement for services that amount is guaranteed.
    • If there is an agreement for additional speech or occupational therapy hours, those hours are guaranteed.
  • However, if no settlement occurs, the case moves toward hearing.
  • Hearing does not guarantee that the judge will rule in a family’s favor.
  • In mediation, resolutions can be creative. Services can be agreed upon that would never be granted by the court.
    • For example, while a Judge may  not order a district to pay for a specific private school, at mediation the parties may be able to agree on the school via a settlement agreement thus guaranteeing the student’s placement.  

Why might mediation be unsuccessful?

  • In many mediations, a finalized agreement is not reached. This does not necessarily mean mediation is not effective, as the discussions allow for increased understanding between parties and often will lead to an eventual settlement.
  • If mediation is not successful, a settlement is often reached shortly before hearing.
  • Mediation may also be unsuitable if there is a low quality mediator. Whereas excellent mediators will encourage parties to reach settlements, ineffective mediators will not necessarily push as hard.

Is mediation still a worthwhile effort?

  • Yes. Although mediation will not always lead to a settlement, it enables better understanding between parties.

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

Michael Boll, father to a son with autism and CSNLG team member, talks with attorney Richard Isaacs about mediation. Something that is required by the California Office of Administrative Hearing prior to a full hearing.

 

 

This is a summary of the fifth edition of CSNLG’s podcast Special Education Matters. In this podcast, our host Michael Boll and lead attorney Richard Isaacs discuss what families should do if the school district files a lawsuit against the family. The podcast can be found here.

There are two particular instances where a district might sue a family

1. A parent requests an an IEE (Independent Educational Evaluation) to be funded by the school district and the district chooses to defend their assessment

  • In this scenario, the law requires that they file a lawsuit to defend their assessment.
  • At this point, the parent may choose to drop the request for funding, and the lawsuit would go away.

2. The district files a lawsuit to enforce their IEP offer if a parent doesn’t consent to their IEP.

  • For example, there are a lot of families that will disagree with the district’s offer and they’ll push for funding for a private school. The district can then sue to deny your request for them to fund a private school.
  • This typically comes into play when the family files suit for reimbursement of a placement. The district will then turn around and sue the family to defend its placement in response.

Timeframes are different if a district initiates the suit

The time frame is much shorter.

  • When the family files suit: a 30 day resolution period starts, the court has to have a decision within 45 days, so there’s about 75 days for things to work out.
  • When the district files: there is no resolution period, so a hearing has to be held within 45 days.

How do we deal with either of these situations?

It is a scary thing when the district is filing suit against a family. But again, this doesn’t change much – we can usually work it out.

  • Sometimes we countersue, and we join the two cases together and we get new dates set. If the district is going to file, we are also going to file.
  • The OAH (Office of Administrative Hearings) makes the student’s case the controlling case for date purposes and scheduling purposes.

Is it realistic of you to represent yourself in the lawsuit?

  • There are plenty of decisions where parents will go alone and win. The judge is sometimes more lenient towards parents without representation.
  • However, we would never advise a client to go at it alone, although some parents have been quite successful doing that.

To conclude, if you find out that the district filed a lawsuit against you, what steps should you take?

  • Consult with an attorney.
  • There are many attorneys that are able to provide a quick, free consultation and point the family in the right direction.

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

Michael Boll, father to a son with autism and CSNLG team member, talks with attorney Richard Isaacs about the scary thought of a district suing the family. It does happen and sometimes they feel compelled to do it.

 

 

 

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?

  • A Resolution Session within 15 days must be scheduled
  • Mediation may be scheduled
  • Trial/hearing if no resolution reached

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)
  • Parents have paid for educational services and are requesting reimbursement.
  • If there is no agreement, 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. There are exceptions to this rule.

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 session  is not helpful. families t

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 understands the law and has experience in helping the parties reach a settlement.

Problems with mediation:

  • In the case of a poor mediator, where the ALJ may be inexperienced  or otherwise unsuitable, a successful mediation may not occur.
  • Another option is to skip mediation and sit down directly with the school district and the attorneys in a settlement conference. This is beneficial when the relationship between the family and district is strong.
  • 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 at hearing.

What about trials or hearings?

  • Around 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 try and  settle each case, rather than go to hearing. Hearing is the last option.

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