Anatomy of a Special Education Due

Process Case

Karen HaaseKaren HaaseSteve WilliamsHarding & Shultz

(402) 434-3000( )khaase@hslegalfirm.com

There are worse things than due process

The Starting Point: “Red Flags”

►When you see these its time to►When you see these, its time to• Double check your paperwork and

process• Check in with the team• Consider contacting legal counsel

Here’s Your Signsg Making a records requestg q Requesting an IEE Retaining an advocate/attorney Retaining an advocate/attorney Recording an IEP team meeting

i i i Filing a parent complaint Seeking unilateral placement, servicesg p , Refusing to cooperate

Red Flag # 1:P t R t R dParent Requests Records

►Parents have a right to►Parents have a right to• Inspect and review education records

R t l ti /i t t ti• Request explanations/interpretations• Request copies• Have a representative review copies

►District Obligations► st ct Ob gat o s• Respond without unnecessary delay• Copy records if refusing to do so will• Copy records if refusing to do so will

“effectively prevent” parent from review

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

Red Flag # 2:Request IEE/Get Private Eval►Parents have a right to• request a publicly funded IEErequest a publicly funded IEE• Have team consider private evaluation

►District Obligations►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 Private evaluations must be considered

by the team – not required to pay even if you considery

Team not required to accept recommendationsrecommendations

Document the review and discussion/considerationdiscussion/consideration

Strategic Considerationsg Evaluate the strength of the assessment Evaluate the strength of the assessment

with which the parent disagrees Objectively review strengths and Objectively review strengths and

weaknesses of private assessment, if already obtainedalready obtained

Consider pros and cons of funding or filingfiling

Red Flag # 3:Parent Advocate at Meetings►Parents have a right to• Right to include an additional member on g

IEP team• May be an advocate/attorneyy y• Parent not required to provide notice

►District Obligations►District Obligations• Cannot prevent parent’s advocate/attorney

from attending a meetingfrom attending a meeting• May bring its own counsel

Procedural Considerations Request notice from parent Request notice from parent

regarding representation at team meetingmeeting

If parent representative appears without notice may reschedule orwithout notice, may reschedule or proceedM d t d if d May need to proceed if under timeline pressures

Strategic Considerationsg Should the district’s attorney attend? Should the district s attorney attend?• Federal guidance discourages

R t ti b h l f l•Representative may be helpful•Holding meetings without district g g

counsel may de-escalate the situation, demonstrate confidence ,in abilities, professionalism of staff

But what are the risks?

Strategic Considerationsg Parent’s advocate/attorney may: Parent s advocate/attorney may:•Dominate the meeting

I ti id t /i t t t ff• Intimidate/interrogate staff• “Set up” evidence for hearingp g

Weigh the pros and cons

Strategic Considerationsg Consider having district’s attorney Consider having district s attorney

build a relationship with parent’s representativerepresentative•Contact before meeting

A k l d i ht t•Acknowledge right to representation• Establish and maintain respectful

and cooperative relationship, p p,communications

Red Flag # 4:Recording Meetings

►Parents have a right to• Not addressed in federal lawNot addressed in federal law• State law may allow, prohibit, limit BUT• Federal regulations require that parent• Federal regulations require that parent

understands IEP meeting proceedings►District Obligations►District Obligations• ??

Strategic Considerationsg Probably no compelling reason to Probably no compelling reason to

disallow audio or video taping Demonstrates district’s confidence Demonstrates district s confidence

Strategic Considerationsg Even if parent records, will the district?p ,

-Not recording prevents “dueling recorders” scenario

-Consider whether district wants to create an educational record

Maybe yes, maybe noMay want to document conduct and yparticipation of parent, attorney or advocate

Red Flag # 5:Parent Complaints

►Parents may complain about• StaffStaff• Bullying• Rule 51 complaint• Rule 51 complaint

►District Obligationsi A OC• Investigate AND DOCUMENT

• Cooperate with NDE investigations

Red Flag # 6:Lack of Cooperation

►Parents evidence by:• Refusing to consent/revoking consent toRefusing to consent/revoking consent to

initial eval• Refusing to sign initial IEPRefusing to sign initial IEP• Refusing to sign subsequent IEPs• Failing to participate in process at all• 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 daysMandatory Resolution within 15 days• If not resolved within 30 days, due

process proceedsprocess proceeds• Hearing officer has 45 days to rule

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

How Due Process Works►Stay Puty• During pendency of case, child remains in

“current educational placement”p• Courts have interpreted as “last agreed-to

placement”p►Special rules for• Student who brings a weapon• Student who brings a weapon• Student who brings drugs

St d t h i fli t i b dil i j• Student who inflicts serious bodily injury

How Due Process Works►The Board’s role

How Due Process Works►The Board’s role •During pendency of case, board

cannot say anythingcannot say anything•After case: can express pleasure or

disappointment in decision and candisappointment in decision and can articulate decision to appeal or not

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

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

Anatomy of a Special Education Due

Process Case

Karen HaaseKaren HaaseSteve WilliamsHarding & Shultz

(402) 434-3000( )khaase@hslegalfirm.com