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