Anatomy of a Special Ed. Due Process Case

Anatomy of a Special Education Due Process Case Karen Haase Steve Williams Harding & Shultz ((402)) 434-3000 khaase@hslegalfirm.com

There are worse things than due process

The Starting Point: “Red Flags” ►When you see these these, its time to • Double check your paperwork and process • Check in with the team • Consider contacting legal counsel

Here’s Your Signs g  Making g a records request q  Requesting an IEE  Retaining an advocate/attorney  Recording an IEP team meeting  Filing i i a parent complaint i  Seeking g unilateral p placement,, services  Refusing to cooperate

Red Flag # 1: P Parent t Requests R t R Records d ►Parents have a right to • Inspect and review education records • Request R t explanations/interpretations l ti /i t t ti • Request copies • Have a representative review copies

►District ► st ct Obligations Ob gat o s • Respond without unnecessary delay • Copy records if refusing to do so will “effectively prevent” parent from review

Procedural Considerations ►Develop pap procedure for response p ►Understand applicable timelines ►Ensure that requestor is authorized ►Provide access to ALL requested records ►May be required to copy records

Red Flag # 2: Request IEE/Get Private Eval ►Parents have a right to • request a publicly funded IEE • Have team consider private evaluation ►District Obligations • Must provide agency criteria • Must provide information about where IEE may be obtained • May not impose conditions or timelines • May not require parent explanation

Procedural Considerations  Private evaluations must be considered by the team – not required to pay even if y you consider  Team not required to accept recommendations  Document the review and discussion/consideration

Strategic g Considerations  Evaluate the strength of the assessment with which the parent disagrees  Objectively review strengths and weaknesses of private assessment, if already obtained  Consider pros and cons of funding or filing

Red Flag # 3: Parent Advocate at Meetings ►Parents have a right to • Right g to include an additional member on IEP team y • Mayy be an advocate/attorney • Parent not required to provide notice

►District Obligations • Cannot prevent parent’s advocate/attorney from attending a meeting • May bring its own counsel

Procedural Considerations  Request notice from parent regarding representation at team meeting  If parent representative appears without notice notice, may reschedule or proceed  May M need d tto proceed d if under d timeline pressures

Strategic g Considerations  Should the district’s district s attorney attend?

• Federal guidance discourages • Representative R t ti may b be h helpful l f l • Holding g meetings g without district counsel may de-escalate the situation,, demonstrate confidence in abilities, professionalism of staff But what are the risks?

Strategic g Considerations  Parent Parent’ss advocate/attorney may: • Dominate the meeting • Intimidate/interrogate I ti id t /i t t staff t ff • “Set up” p evidence for hearing g

Weigh the pros and cons

Strategic g Considerations  Consider having district’s district s attorney build a relationship with parent’s representative • Contact before meeting • Acknowledge A k l d right i ht tto representation • Establish and maintain respectful and cooperative p relationship, p, communications

Red Flag # 4: Recording Meetings ►Parents have a right to • Not addressed in federal law • State law may allow, prohibit, limit BUT • Federal regulations require that parent understands IEP meeting proceedings ►District Obligations • ??

Strategic g Considerations  Probably no compelling reason to disallow audio or video taping  Demonstrates district’s district s confidence

Strategic g Considerations  Even if p parent records,, will the district?

-Not recording prevents “dueling recorders” scenario -Consider whether district wants to create an educational record Maybe yes, maybe no y want to document conduct and May participation of parent, attorney or advocate

Red Flag # 5: Parent Complaints ►Parents may complain about • Staff • Bullying • Rule 51 complaint ►District Obligations • Investigate i AND A DOCUMENT OC • Cooperate with NDE investigations

Red Flag # 6: Lack of Cooperation ►Parents evidence by: • Refusing to consent/revoking consent to initial eval • Refusing to sign initial IEP • Refusing to sign subsequent IEPs • Failing to participate in process at all ►District Obligations • Initial consent/IEP: parent controls • Subsequent: do what is best for kid

The Ultimate Red Flag: Petition filed under Rule 55

How Due Process Works ►Petition filed with NDE • Hearing Officer Assigned • Mandatory Resolution within 15 days • If not resolved within 30 days, due process proceeds • Hearing officer has 45 days to rule

►Prehearing • Written discovery • Depositions or Interviews • Get your lawyer ALL of your documents

How Due Process Works ►Stayy Put • During pendency of case, child remains in “current educational placement” p • Courts have interpreted as “last agreed-to p placement”

►Special rules for • Student who brings a weapon • Student who brings drugs • Student St d t who h iinflicts fli t serious i bodily b dil injury i j

How Due Process Works ►The Board’s role

How Due Process Works ►The Board’s role • During pendency of case, board cannot say anything • After case: can express pleasure or disappointment in decision and can articulate decision to appeal or not

How Due Process Works ►The Decision • Not made immediately • Usually 30 days • Mailed to attorneys

►Appeals • To state court: 2 years • To federal court: 90 days

Anatomy of a Special Education Due Process Case Karen Haase Steve Williams Harding & Shultz ((402)) 434-3000 khaase@hslegalfirm.com