IDEA’s Original Vision

© 2017 National School Boards Association. All Rights Reserved. 1

IDEA AT 40+ PART TWO: DUE PROCESS, EXHAUSTION,AND MEDIATION: THE EXPANSION OF LITIGIOUSNESS

AND A PROPOSAL FOR A RESET

Kathleen S. MehfoudReed Smith LLP

Richmond, VirginiaKathleen Sullivan

Colorado Association of School BoardsDenver, Colorado

IDEA’s Original Vision


Reality?

IDEA’s Original Vision


Reality?

Number of IDEA Hearings


Number of IDEA Hearings

HARD COST OF HEARINGS HAS GREATLY ESCALATED.

• $150,190 in attorneys’ fees awarded (reduced from $267,139).

• $315,000 in legal fees and costs over tuition reimbursement award of approximately $33,000.

• Fee award of $327,641 was remanded for reconsideration.

• Hourly rates of $600 and $450 approved for attorneys.


SOME FEE VICTORIES BY SCHOOL DISTRICTS

• Parents denied recovery for work performed by seven attorneys and three paralegals.

• $11,767 attorney’s fees awarded to school’s attorneys where there was no need to bring the hearing.

• School Board attorney who was sued recovered attorneys’ fees for frivolous suit.

• Award of $7,780 (less than 12% of the amount requested) because the relief won in the hearing was less than the relief offered by the school district in settlement.

IMPACT OF DISCOVERY

• Complications from discovery of electronic information.

• Complying with discovery requests while engaging in hearing preparation.

• Charging $2,600 for the production of the records and a suit for retaliation.


HEARINGS CAN BE STRESSFUL AND COSTLY

• 27 day due process hearing in Hamilton County Department of Education, 103 LRP 28693 (Tenn. SEA 2001).

• Fourteen day hearing in E.L. ex rel. Lorsson v. Chapel Hill-Carrboro Bd. of Educ.,No. 13-2330, 2014 U.S. App. Lexis 22796 (4th Cir. December 3, 2014).

• Hearing involving triplets seeking about $750,000 in damages. L.M.P. ex rel. E.P., D.P., and K.P., minors v. Sch. Bd. of Broward Cnty, Fla., 64 IDELR 66 (S.D. Fla. 2014).

IDEA Hearings Proceed on the Fast Track.

• A due process hearing is to be initiated, tried and decided within forty-five calendar days.

• Optional thirty-day resolution session is available.

• An expedited hearing is available for a manifestation determination decision or the student’s educational placement during discipline.

• Expedited hearings must be held within twenty school days of the initiation of the hearing and a decision issued within ten school days of the hearing.


FAPE AND ROWLEY

• Bd. of Educ. of Hendrick Hudson Sch. Dist. v. Rowley, 458 U.S. 176 (1982).

• R.B. and M.L.B. ex rel. D.B. v. N.Y. City Dept. of Educ.,67 IDELR 241 (S.D. N.Y. 2016).

• In R.B., the student with autism had never attended public school.

• His parents initiated hearings seeking reimbursement almost every year, but failed to prevail.

• In the latest dispute, the parents asserted 148 deficiencies in the two proposed public school IEPs.

• Future DPHs to contest IEPs still available to the parents.

FAPE STANDARD IS BEING CHALLENGED

• Endrew F. ex rel. Joseph F. v. Douglas Cnty. Sch. Dist. Re-1,, 798 F.3d 1329 (10th Cir. 2015), cert. granted, 195 L. Ed. 2d 901 (U.S. Sept. 29, 2016)(No. 15-827).


PARENT DEMANDS

• “A professional disagreement is not an IDEA violation.”

• J.E. and C.E., ex rel. D.E. v. Chappaqua Cent. Sch. Dist., 116 LRP 27979 (S.D. N.Y. 2016).

MENTAL HEALTH AND MEDICAL ISSUES

• Ricci and Karen C. ex rel. L.C. v. Beech Grove City Schs., 68 IDELR 67 (S.D. Ind. 2016).

• Student had significant health issues which the school district had to address.

• Fort Bend Indep. Sch. Dist. v. Douglas A., 601 F. App’x 250, 65 IDELR 1 (5th Cir. 2015).

• The Court concluded that the placement was for treatment purposes rather than educational purposes.


DISCIPLINE CASES CONTINUE TO BE CONTESTED

• Bristol Twp. Sch. Dist. v. Z.B. ex rel. K.B. and R.B.,116 LRP 1736 (E.D. of Pa. 2016)

• Be sure to apply the correct MDR criteria.

• Z.H. ex rel. P.H. and J.H. v. Lewisville Indep. Sch. Dist., 65 IDELR 147, 115 LRP 12653 (E.D. Tex. 2015)

• Student with hit list brought up new disability of PDD after the misconduct.

• Court concluded the PDD was considered and that there was no manifestation attributable to ADHD where there had been planning over a number of days.

Dealing with Violent Students

• Seashore Charter Schools v. E.B. ex rel. G.B., 64 IDELR 44, 114 LRP 38513 (S.D. Tex. 2014).

• The student had autism and cognitive issues, as well as significant behavioral issues.

• Assaults on his parent, his own teacher, other students and the aide.

• The school district employed a one-to one aide and hired a behavior specialist to assist in responding to the behaviors.

• He caused one teacher to resign and the school district had not been able to find another teacher.

• Injunction granted.


Some DPH Issues are Resolved.

• BURDEN OF PROOF

• NO RECOVERY FOR EXPERT WITNESSES.

• NO PREDETERMINATION IF THE PARENTS’ REQUESTS ARE CONSIDERED BUT REJECTED BY THE IEP TEAM.

• PROCEDURAL VIOLATIONS WHICH DO NOT DENY PARENT PARTICIPATION OR DENY FAPE OR EDUCATION SERVICES TO THE STUDENT ARE NOT A DENIAL OF FAPE.

EXHAUSTION OF ADMINISTRATION REMEDIES

• SMITH V. ROBINSON

• HCPA

• FRY v Napoleon, 137 S. Ct. 743 (2017)

• NOT A SERVICE DOG CASE.

• AGREEMENT THAT FAPE IS NOT AT ISSUE.

• DAMAGES SOUGHT.

• PAYNE CASE.

• SPLIT AMONG CIRCUITS

• CRITICAL: WHETHER RAISING ISSUES OF FAPE OR OTHER IDEA ISSUES.


ALTERNATIVE DISPUTE RESOLUTION

• MEDIATION

• VOLUNTARY

• CONFIDENTIAL

• NO FORCED AGREEMENTS

• AVOID HEARINGS

• NO RESCISSION PERIOD.

• GIVE THOUGHT TO (AMONG OTHER POINTS):

• STAY PUT

• ATTORNEYS’ FEES

• RELEASE


RESOLUTION SESSION IN A DPH

• HELD WITHIN 15 CALENDAR DAYS OF NOTICE OF HEARING.

• PARENTS AND AGREED UPON MEMBERS OF IEP TEAM PARTICIPATE.

• MUST INCLUDE AN LEA REPRESENTATIVE WITH AUTHORITY TO SETTLE.

• SCHOOL DISTRICT ATTORNEY CANNOT AUTOMATICALLY ATTEND.

• THREE BUSINESS DAY RESCISSION PERIOD FOR ANY AGREEMENT.

FUTURE CONSIDERATIONS FOR RESOLUTION AND DUE PROCESS HEARINGS

• Any issue to be considered in a hearing must first be considered in an IEP meeting;

• All hearing requests must be specific in setting forth the allegations, the issues and the relief;

• The timeline for responding to a due process hearing should be ten business days after initiation or after a ruling on a notice of insufficiency;


• The resolution session should occur within fifteen business days rather than fifteen calendar days;

• Mediator should have required qualifications so that mediation will have a higher likelihood of success;

• School district attorneys should participate in the resolution session if an advocate or attorney accompanies the parents;

• The SEA should pay for the hearing officer and the court reporter;

• The statute of limitations should be limited to one year;

• The disclosure of witnesses, as well as documentary evidence, should be required;

• Evidence regarding the student’s progress in private schools should be excluded;

• Deference to the decisions of the IEP team should be afforded; and

• The statute should require that the burden of proof is on the party moving to change the status quo.


SOME PRACTICAL TIPS

• ANTICIPATE A HEARING AND PREPARE

• HOPE THAT THE CLIENTS CONSULT WITH THEIR ATTORNEYS.

• CONSIDER ADR

• ADVISE CLIENTS OF THE COST OF THE HEARING AND OF THE TOTAL EXPOSURE.

THE END

Documents

IDEA’s Original Vision