ADVANCED ADVOCACY: IEPS AND DISPUTE RESOLUTION Devon Rios Barellano, Esq. Specializing in special education law and litigation Elizabeth Eubanks, Esq

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  • ADVANCED ADVOCACY: IEPS AND DISPUTE RESOLUTION Devon Rios Barellano, Esq. Specializing in special education law and litigation Elizabeth Eubanks, Esq. Inland Empire Regional Director, Disability Rights Legal Center
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  • Disclaimer This presentation is for general information and educational purposes only, nothing should be construed as specific advice regarding your individual legal issue or case nor does it rise to the level of an attorney-client relationship.
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  • Presentation Overview Today we will cover: Legal standard for special education and related services Strategies in representing students with special education needs Tools to resolve conflicts Common areas of disagreement Evaluating dispute resolution options
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  • Individuals with Disabilities Education Act Federal law that provides for special education and related services for eligible students with disabilities. The State must make a free appropriate public education (FAPE) available to all resident children between the ages of 3 and 21, including children with disabilities who have been suspended or expelled from school.
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  • Special Education Defined Statutory Definition: specially designed instruction, at no cost to the parent, to meet the unique needs of individuals with exceptional needs, including instruction conducted in the classroom, in the home, in hospitals and institutions, and other settings, and instruction in physical education. Cal. Educ. Code 56031; see 20 U.S.C 1401(29). Should be in the least restrictive environment.
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  • Two types of Legal Rights: Procedural An opportunity to: Examine records Participate in meetings Obtain an IEE Prior Written Notice whenever the District proposes or refuses to initiate/change the identification, evaluation, or educational placement of the child or the provision of FAPE. Notice to parents in their native language Substantive Free Appropriate Public Education All children between 3-21 Appropriate = reasonably calculated to enable the child to receive educational benefits. Not best education
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  • Individualized Education Plan (IEP) ALWAYS START HERE present the issues/concerns to the IEP Team A cooperative process between parents and schools. The school district must provide a written offer of FAPE- A comprehensive statement of the educational needs of a child with a disability and the specially designed instruction and related services a district will employ to meet those needs. In creating an IEP, the District must follow the procedural safeguards.
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  • Components of an IEP: A statement of the child's present levels of academic achievement. A statement of measurable annual goals, including academic and functional goals. A description of how the child's progress toward meeting the annual goals will be measured and when periodic reports on the child's progress toward meeting the annual goals (such as through the use of quarterly or other periodic reports, concurrent with the issuance of report cards) will be provided. A statement of the special education and related services and supplementary aids and services to be provided to the child. An explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular class and in the extracurricular or other nonacademic activities. A statement of any individual appropriate accommodations that are necessary to measure the academic achievement and functional performance of the child on statewide and districtwide assessments. The projected date for the beginning of the services and modifications along with the anticipated frequency, location, and duration of those services and modifications.
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  • Requesting a new IEP Parents have the right to request an IEP meeting at any time (Cal. Educ. Cod 56343,56343.5) School district must convene an IEP meeting to discuss lack of expected progress (Cal. Educ. Code 56341.1(d)(1)) School district must convene meeting 30 days after parents request (Cal. Educ. Code 56343.5) School districts are not required to convene IEP meetings during winter, spring, or summer breaks
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  • Do I ask for Another IEP or Am I Ready for Dispute Resolution? IEP/Evaluation Request: 1.Requests for changes are not clear 2.Needs are not established or discussed 3.Assessments pending Dispute Resolution: 1.Do you know what you are requesting? 2.Can You support it? 3.Do you understand the legal standard/likely outcome? 4.Is your client prepared (mentally, organizationally and with proper support) to go as far as necessary to have the needs met?
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  • Negotiation Definition Bargaining (give and take) process between two or more parties (each with its own aims, needs and viewpoints) seeking common ground to reach an agreement to settle a matter of mutual concern or conflict (www.businessdictionary.com)www.businessdictionary.com How does this definition apply to resolving special education disputes?
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  • Pre-filing ADR Informal Largely unregulated No procedural safeguards Issues to consider: Who will be there? Will you be negotiating a settlement agreement or IEP terms?
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  • Enforcement if you Informally Resolve? 1.California Department of Education enforces mediated settlement agreementsnot contracts outside the process. 2.Are you prepared to enforce in state court, if necessary?
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  • Pre-filing Mediation Office of Administrative Hearings will provide a mediator at no cost. Should be impartial ATTORNEYS OR OTHER INDEPENDENT CONTRACTORS MAY NOT ATTEND Issues to consider: Balance of power if your client attends unrepresented
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  • State Complaint State Compliance Complaint California Department of Education State Complaint CDE must investigate all complaints State complaint used mainly for procedural errors See 5 C.C.R. 4600 et seq. http://www.cde.ca.gov/index.a sp Address: Complaint Management and Mediation Unit Special Education Division California State Department of Education 1430 N. Street, Suite 2401 Sacramento, CA 95814 Telephone: (916) 319-0800 or 1 (800) 926-0648 Fax: (916) 327-3704
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  • Office of Civil Rights Discrimination Complaint Office of Civil Rights (OCR) Federal Complaint OCR does not have to investigate all complaints OCR complaint used mainly for allegation of discrimination Address: Office of Civil Rights Region IX U.S. Department of Education Old Federal Building 50 United Nations Plaza, No. 329 San Francisco, CA 94105 Telephone: (415) 437-8310 Fax: (415) 437-8329 TDD: (415) 437-8311 http://www.hhs.gov/ocr
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  • Due Process Filing Administrative forum Governed by the Office of Administrative Hearings Attorneys/advocates can and often are present Trial-like environment Evidence Witnesses Administrative law judge a.k.a Hearing Officer Right to appeal Right to recover attorneys fees * Stay Put
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  • When to file for Due Process When there is a disagreement between you and the school over what is a Free and Appropriate Public Education (FAPE) Implementation Eligibility Assessments Changes to IEP without your approval and/or Placement District takes parent/educational rights holders to due process
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  • Due Process Timeline Parent must file within 2 years from the time parent knew or should have known of the injury or event School district must answer complaint within 10 days of filing (PWN) Resolution meeting must be held within 15 days of filing the complaint Mediation within 30 days of filing the complaint Hearing must be set within 45 days after the 30 days to resolve [75/45] Appeal to state or federal court within 90 days of Order
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  • Legal Standard and Basic Procedures Burden of proof is on the moving party Most of the time the parent bears the burden of proof to show a denial of FAPE Evidence At least 5 business days prior to the hearing, each party must disclose evidence that they plan to use at the hearing ( 34 C.F.R. 300.512(b)(1))
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  • Remedies Compensatory Education - equitable remedy to make up for education lost due to district violation of FAPE Reimbursement for parents that have paid to provide FAPE To decide any issue of FAPE (placement, related services, least restrictive environment) Prevailing Party Status as to each issue
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  • Common Settlement Terms 1.Substance: Do you know exactly what you are being offered. (some examples) 2.What are you giving up in exchange for what you are getting? Just the narrow disputed issue? All educational disputes? Legal rights beyond special education? For how long are you giving these things up?
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  • Sample Waiver Language Current Issue only Student waives all claims related to students speech and language services from January 28, 2013 to date of full execution of this agreement What are you giving up? What is the time frame?
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  • Sample Waiver Language 1.Time Frame? 2.Areas?
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  • Questions?
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  • Contact Information Devon Rios Barellano Law Office of Devon Rios Barellano Special Education Law and Advocacy 12227 Philadelphia Street Whitter CA 90601 (562) 360-1728 Devon@Riosbarellanolaw.com www.riosbarellanolaw.com Elizabeth Eubanks Disabi