Lessons Learned from Due Process

1. 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

2. Spotting the Iceberg Before Impact

3. 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

4. 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.

5. Conflict with Staff

6. Student-Based Decision Making • Losing Ground by Conceding • Parent Refusal to Agree • Keep Team Focused on Needs of the Student

7. Try Breaking the Ice

8. 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.

9. 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 • IndependentEducational 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

10. 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

11. 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

12. 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.

13. Sounding the Alarm! When Impact Can’t Be Avoided

14. 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

15. 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!

16. 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.

17. 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

18. 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.

19. 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

20. 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!

21. Sailing Your Lifeboat to Dry Land: Starting Over Again

22. 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.

23. Questions??? • Sarah Loquist – sloquist@sped618.org THANK YOU FOR COMING!!!