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Community Advisory Committees (CAC). Have you heard of them? Ashley Lopez has and she has some interesting information to share! Every school in California is required to have this organization to facilitate communication between parents of children with special needs. Checkout Ashley’s committee here.

Ashley, who has a strong sense of advocacy and a seemingly endless supply of energy, realized that her CAC needed an “upgrade.” After some pushing and agitating Ashely came to understand that the community in this school district was not being well served. While she was able to secure services for her son, others did not have the same resources to do the same.

 

 

This post is a summary of an interview I did with Richard Isaacs, an attorney here at CSNLG. Check out the full interview here.

Lawyers who handle special education cases know and understand that getting legal services may intimidate families. One thing that not all parents know is that there are three possible ways to pay for attorney’s fees:

  • Upfront Payments – Client pays the fees upfront from their own pocket as the attorney completes the work.
  • Retention Fees – Client pays a retention fee and the firm attorney from it and recovers additional fees during a settlement with the district.
  • No Upfront Charges – Client pays no fee and all final fees are recovered during a settlement with the district.

Different firms have different payment structures… but clients should know they control the case and are always part of the decision process to continuing to pay for services.

A typical firm charges an hourly rate and retainer fees will vary. Attorney’s fees run from $200 to $500 an hour and cases, on average, run 20 to 80 hours. Depending on the complexity of the case, fees run from a few thousand dollars up to a hundred thousand. That final number is rare and involves an attorney working a case to and beyond an appellate court.

In California, about 97% of special education cases are settled outside of trial. From Richard’s experience, costs are about $3,000-$5,000 for a basic case and the average is from $8,000-$10,000. Parents and the school district usually go through due process, an informal hearing, with a judge provided by the state. When the judge’s decision favors the student, the parents have the right to recover the attorney’s fees from the settlement.

In the end, a good lawyer will clearly explain the fees, give you a sense of control over how much you wish to spend, and will ultimately focus on what is best for the child.

 

Richard Isaacs, Attorney and CSNLG Founder

With the start of the 2017-2018 school year well on its way, I have noticed more due process filings by school districts against families.

A due process hearing means either party, in this case, the districts, are asking the court system to intervene and make a ruling.

While this might sound alarming at first, it is often legally necessary for school districts to take such drastic actions. The law is clear that when parents request public funding of independent educational evaluations (IEE’s) the school district must fund the assessments or file for due process to show their own assessments are appropriate. The legal standard for assessment compliance is low and the courts are routinely finding district assessments comply with the law.

As such, school districts are filing more often.

Interestingly, and unfortunately, districts sometimes file for due process even when they know their assessments are not defensible. There is a clear strategy for them here: It helps them enter into a settlement agreement to fund the requested IEEs and thereby insulate themselves from liability. They add waiver language to the proposed agreement.

School districts are also filing more often to defend the appropriateness of their IEP offer. While the law merely states the school district may file to enforce its IEP, court decisions have recently come out holding districts liable if they do not file for due process. The ruling expects them to seek judicial intervention in overriding a parent’s lack of consent to necessary educational services. In other words, if parents do not fully consent to the proposed IEP, and the District believes the services are necessary, they are required to file for due process.

This is an unfortunate development in the law because it now elevates an IEP dispute to the litigation level. Parents are practically forced to hire an attorney to defend against the school district’s lawsuit.

Sadly, a recent court case has also called into question whether families can be represented at the administrative court level by educational advocates. For families who could not afford an attorney and advocate is a much less expensive option.

This appears to no longer be the case.

It is strange that the state of California is taking such an aggressive stance against parents who have children with special needs. With the increased filings against families, the shrinking of options parents have to defend themselves, California is moving backward.

If your school district ever files for due process against you it is important to seek legal advice on how to move forward. Regardless if you hire an attorney or not, you should at least contact an attorney who specializes in special education law and obtain a clear understanding of your rights. The Office of Administrative Hearings (OAH) has a list of low cost and free attorneys you can use to find a law firm that you feel comfortable working with.

As always, we are happy to help too.

Your child’s education is rightly very important to you, so if ever any issues arise between you and the school, it’s important you know that there are special procedures in place for resolving disputes: mediation and due process hearings.

 

An initial response to a dispute is often mediation, where you and a school representative will meet with a neutral third party to discuss the issue. The mediator has no authority to impose a decision, and is there only to facilitate discussion in order to help you and the school reach an acceptable compromise. If you are not satisfied by the results of mediation, you may proceed to a due process hearing. If you are not interested in mediation at all, you may go directly to the due process hearing.

Every person in California is guaranteed due process by the state and federal Constitutions. Due process protects individuals’ rights, and in this case, specifically the rights of students in special education programs.

 

What is a Due Process Hearing?

 

It is an official, legal procedure meant to resolve differences between parents and their child’s school as concerns special education services and a free and appropriate public education. They are most often held over disagreements about a child’s evaluation, eligibility or placement, services such as aides and specialists, changes to a child’s IEP, or a child’s suspension. Both the parent and the school district have the right to file for a hearing. The party who files is responsible for proving whether the child’s rights are being respected.

 

How to Request a Due Process Hearing

 

Send a written request, called a Due Process Complaint, to the state and the school district. This must be filed within two years after you are aware of the issue. It must include:

  • Child’s name, address and school
  • Parental contact information
  • Description of the reason for requesting a hearing as relates to the child’s education
  • Proposed solution to the problem

It can also include the sections of federal and state codes that you believe have been violated.

 

You may increase your chance of success by hiring a lawyer or special education advocate, though legal costs can add up very quickly. The school district is not required to pay your legal fees.

 

However, filing a Due Process Complaint can incur fees and added stress, so it is wise to only go this route if absolutely necessary. You should always try every available opportunity for mediation and collaboration with the school district before resorting to filing for a due process hearing.

 

During the Due Process Procedure

 

After filing a Due Process Complaint, the student has the right to stay in his or her current placement and use the current IEP.

 

Since this can be a very stressful time, do all you can to stay organized and informed of the events. Be able to clearly define the school’s position and reasoning, as well as your concerns and proposed resolutions so as to hopefully avoid becoming overly emotional in the hearing. Most importantly, rather than getting caught up in the red tape, remember why you’re doing it- to help your child get the best education possible.

 

Timeline of the Procedure

 

 

After the parent files a request for a due process hearing

Within 10 days: the school must offer a resolution meeting or agree to proceed with the hearing.

Within 15 days: the school district must notify if it is challenging the complaint’s sufficiency, offer a resolution meeting, or agree to go forward with the hearing.

Within 75 days: the Office of Administrative Hearings decision must issue a decision.

 

If mediation is requested, this will occur approximately 35 days after the filing date. The due process hearing will usually be held about 55 days after the request is filed, and a prehearing conference will be scheduled one week earlier.

 

The Office of Administrative Hearings must issue a final decision within 45 days of the Due Process Hearing.

 

More Information
More guidance on preparing for and completing the Due Process Hearing is available from California’s Office of Administrative Hearings.

 

If you would like to get more information on these topics and more come to the Special Education Laws Made Simple Seminar Monday, May 19th in Orange, CA!