Tuesday, May 4, 2010

Special Education Advocacy: When should I consider filing for due process?

By Louis Geigerman, Founder of NARDA

The question of when to file for due process is a perplexing problem for many parents with children receiving special education services from their public schools. Common sense tells you that you do not charge into the court house unless you have the facts in order to prove your case.

For one thing, it is an expensive endeavor especially if you have hired counsel to represent you. The other reason is that if the case is not substantive which has a very high legal standard; you could possibly be liable for attorney fees if you lose. The problem is that many parents at times are very mad about the treatment or services that their child is or isn’t receiving at school and they want to go to war. In this month’s column, I will attempt to provide you with some guidelines to consider before filing for due process.

Before I begin it is important for you the reader to understand that this column is not to be construed as legal advice. Legal advice should only be provided by a licensed attorney in your state. It is recommended that you seek competent legal counsel with an attorney specializing in special education law.

Generally, a parent should consider filing for due process if their child has been denied a free and appropriate public education (FAPE). Tip offs that your child may have been a FAPE:

The district is recycling the same IEP goal and objectives (G & O’S) year after year which may be indicative that the student is making trivial progress.

The IEP G & O’S are not based on data or assessments. IEP G & O’S cannot be pulled out of thin air.

The district has failed to conduct an assessment that was mandated by an IEP committee.

The student has not been assessed in all suspected areas of suspected disability.

The student is failing.

The student’s behavior has deteriorated.

The IEP’S are not being implemented.

The school has recommended that your child be retained.

The school is recommending a more restrictive placement for your child.

In a previous article in this publication, I mentioned that the parent has a right to request an Independent Educational Evaluation (IEE) at public expense when they have disagreed with an assessment performed by the local school district. The IEE can be an important tool to use in the event that you need to go to a due process hearing. When picking a provider for the IEE, ask them if they would be willing to testify in hearing regarding their findings, if push comes to shove. This is important as many due process cases hinge on the credibility of the experts that testify. In essence, it often becomes the war of the experts.

If a child’s placement is the issue, assessments with specific recommendations regarding the appropriate placement for the student will be crucial. So if you have requested an IEE regarding this issue, make certain that the evaluator understands that you need very specific recommendations regarding the placement. Also, data regarding student progress on the IEP’S including behavior will be essential in the problematical placement.

Similarly, if the issue for dispute is regarding a related service, the IEE once again could be very important in a case that is litigated.

Ok, when do we file for due process? The first thing to consider is the state’s statute of limitations of SOL. A SOL means as soon as you are aware of a problem or should been aware of a problem, you must file for due process in a specified period of time. The state of Florida has a two year SOL, so it is imperative that you or your attorney file it within two years of the time of the dispute.

The other thing to consider is have you tried to work things out with the district prior to filing for the due process complaint? Generally, unless we are up against the wall on a statute of limitation issue, I give a district two meetings to see things our way. If they do not, then I recommend that my client consider filing as long as we can prove that the district has failed to provide a free and appropriate public education (FAPE).

It is important that if you disagree with anything in an IEP meeting, be certain to sign and check the box that you disagree. With few exceptions, you need to have a disagreement before you file for due process. Be certain to audio record your IEP meetings and get all the salient points in the meeting in writing in the deliberations.

Always, request that the deliberations be read aloud at the end of the meeting and make corrections to the record as they are being read. If the district refuses to include your statements in the IEP deliberations, then request that your version of the deliberations be attached to the IEP document. Should they refuse to do this, they will have serious problems in due process as hearing officers almost uniformly do not look favorably if parents are not equal participants in the proceedings and this could be indicative that they were not. Make certain that you see the completed hard copy of the IEP meeting before you sign the document.

The bottom line here is to try to work it out with them, but give the district a short leash. There is a time to cut off meetings and go to war if need be. The procedural safeguards which include your right to file for due process are there for a reason. Do not be afraid to assert your child’s rights.

Louis H. Geigerman, President
National ARD/IEP Advocates
http://www.narda.org
Email: louis@narda.org
Voicemail: 281-265-1506

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