• Do-It-Yourself Due Process

    If you desire to do your own special education due process hearing, you may want to order the e-book "Do-It-Yourself Special Education Due Process: An Educational Guide". It is available at www.learningenabledpublications.com.
  • Due Process: How It Works

    Due Process – What's the order of events?

    1. The request for a due process hearing is submitted to your state's education agency and to the school and cooperative or interlocal simultaneously and details what the issues of contention are and what the proposed resolutions are, to the extent known by the parent.
    2. Your state's education agency assigns an independent hearing officer (IHO) to your case from a rotating list.
    3. The IHO will contact the school and your attorney to set up a time for a prehearing conference. (To learn what happens at the prehearing conference, see the memo entitled “What Happens During a Prehearing Conference?”
    4. Both parties (the school and parents) will prepare their case for hearing. I will give you “homework assignments” to help me prepare your case for hearing. This is helpful to me and also helps keep your legal fees lower. Before we go to hearing, I will share with you my due process trial plan so that you have a roadmap as to where we’re going and how the hearing will be conducted. We’ll also talk (or email) frequently while we’re preparing your case for hearing. Generally, I also meet with the family the night before the case begins to go over any last-minute questions you might have.
    5. Sometimes the parties go to a mediation before a hearing, and if you believe there’s a chance of resolving your case with the school, I would highly encourage an attempt at mediation. The school has to pay the cost of the mediation, and generally the parties go to the mediation without their attorneys, who are on call via phone for questions.
    6. The hearing will be conducted according to the plan devised at the prehearing conference.
    7. If we are the ones who requested the hearing, we go first during the hearing, which means we will do our opening statement first, followed by the school’s opening statement, then put on our witnesses, then the school will put on its witnesses. Then we’ll either do verbal closing arguments, written closing arguments or closing briefs. I generally prefer to do verbal closing arguments in order to keep the legal fees down and because the hearing officers in this state are very well-versed in the laws, arguments and different areas of disabilities. However, sometimes the schools insist on doing written closing arguments or closing briefs, and I will ask you if you want me to do a verbal closing or to match them on the written closing or brief.
    8. At the end of the hearing, the IHO will state when the decision will be made and mailed to the attorneys for both sides. He or she also will ask if you want an electronic or printed-out copy of the transcript. Electronic versions are easier to use/copy/email to others. However, if you decide you want a printed version later, it’s pretty tough on your printer to print out what can be more than a thousand pages of transcript.
    9. Each party has a right to appeal the decision of the IHO. In Texas and Indiana, appeals can be taken directly to state or federal court. If someone is not happy with the results of that appeal, it can be taken to the Seventh Circuit Court of Appeals (for Indiana cases) or the Fifth Circuit Court of Appeals (for Texas cases).
    10. If there is no appeal to the BSEA and no agreement from the school on the payment of your attorney fees, I would have to file a suit for fees in federal or your local court. In this suit for fees, we have to show that we prevailed on some substantial issue and that the hourly rate and hours expended on your case were reasonable. (I haven’t had anyone argue that the hourly rate or hours expended weren’t reasonable yet. Usually the argument is did we prevail on a substantial issue, and our definition of substantial can vary from the school’s definition. Then the court will get to decide.)

    What happens during a prehearing conference?

    The prehearing conference is a conference call that includes all the parties involved in the due process matter. This includes the parent(s), school’s representative(s), school’s attorney, your own attorney and the independent hearing officer (IHO).

    The IHO is in charge of the conduct of the prehearing conference, which is almost always tape recorded.

    Purposes of the Prehearing Conference

    1. Generally the purposes of this prehearing telephone conference are to handle all the details of making the hearing happen. We are NOT going to argue the merits of our case, and the hearing officer will make NO decisions about the outcome of the case at this point, though he might form general impressions of the parties during the prehearing.
    2. Choose dates for hearing.
    3. Solidify the issues (which we will have already listed in our due process request letter, although someone might have a question about some detail).
    4. Decide if the hearing will be open or closed.
      1. Open means anyone who is not a witness can come in and observe the proceedings. The advantage to this is that you can invite your supporters out there in the community, family members, church members or even the news media. Another advantage to an open hearing is that if you have a witness of your own testify, once he or she is released from testifying, he or she can attend the rest of the hearing and observe the proceedings. The disadvantage to an open hearing is that school employees who are not testifying can come in and observe, and sometimes this makes the parents uncomfortable.
      2. Closed means that no one besides the parties and any witness who is testifying currently can be in the room. Advantages to this: You can keep nosy folks out. Disadvantage: You can’t invite your own supporters.
      3. Parents ask me which I, as their attorney, prefer. I truly do not care one way or the other as to whether your hearing is open or closed. Do what you feel most comfortable with.
    5. Establish deadlines for discovery. This deadline is generally five days or more before the first day of the hearing. We have to give the school’s attorney AND the hearing officer a copy of all the documents/tapes any other tangible evidence that we intend to introduce, as well as our witness list and a list of our exhibits. The school must provide the same thing to us. If we do not do this, then we might have any undisclosed witnesses or evidence excluded.
    6. Decide if we need any special accommodations, such as wheelchair access, speaker phone use, other needs.
    7. We’ll also choose a location. Generally the hearings are held in an administration building or a co-op/interlocal building. However, if you would like to have the hearing held at a neutral location, such as a hotel or community center or library, for example, we can request that. This is an example of an expense of litigation that the school is responsible for paying. Again, I personally have no preference as to location.

    Can the parents speak during the prehearing?

    Yes, in fact, I would encourage you to jump in and answer questions that you would more readily know the answers to off the top of your head. For example, if the hearing officer asks the age of your child, you’ll be able to answer that question more quickly than I will.

    Certainly if you hear something that you believe is a misstatement or something that needs to be clarified, you can feel free to jump in and correct the statement.

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  • Hearing Officers

    Statistics on Decisions of Indiana Independent Hearing Officers
    for Article 7 Hearings Conducted from 08-03-95 through 06-06-06


    IHO Decision Chart (updated 06-26-06)
    Microsoft Excel Format ~42kb


    OVERALL
    Parents: 69
    School: 123
    Unknown: 1
    ----------------
    Of the 192 known hearing officer decisions from the time period studied (which is 08-03-95 through 06-06-06), there were decisions in favor of schools 64 percent of the time and decisions in favor of parents 36 percent of the time.


    Kristin Anderson
    Parents: 5
    School: 11
    ---------------
    Of 16 Anderson decisions from the time period studied, 69 percent were in favor of schools and 31 percent in favor of parents.


    Jerry Colglazier (no longer a hearing officer)
    Parents: 5
    School: 14
    ---------------
    Of 19 Colglazier decisions from the time period studied, 73.7 percent were in favor of schools and 27.3 percent in favor of parents.


    Rolf Daniel (no longer a hearing officer, now on BSEA)
    Parents: 5
    School: 8
    ---------------
    Of 13 Daniel decisions from the time period studied, 62 percent were in favor of schools and 38 percent in favor of parents.


    Gaskey (no longer a hearing officer)
    Parents: 0
    School: 3
    ---------------
    Of 3 Gaskey decisions from the time period studied, 100 percent were in favor of schools and 0 percent in favor of parents.


    Dennis Graft
    Parents: 11
    School: 20
    ---------------
    Of 31 Graft decisions from the time period studied, 65 percent were in favor of schools and 35 percent in favor of parents.


    Thomas Huberty
    Parents: 9
    School: 13
    ---------------
    Of 22 Huberty decisions for the time period studied, 41% were for parents and 59% for schools.


    James Jacobs
    Parents: 1
    School: 2
    ---------------
    Of 3 Jacobs decisions from the time period studied, 66.6 percent were in favor of schools and 33.4 percent in favor of parents.


    Jerry Leggett (no longer a hearing officer)
    Parents: 11
    School: 7
    ---------------
    Of 18 Leggett decisions from the time period studied, 39 percent were in favor of schools and 61 percent in favor of parents.


    Joseph McKinney
    Parents: 5
    School: 20
    ---------------
    Of 25 McKinney decisions for the time period studied, 19 % were for parents, and 81% were for schools.


    Laureanne Nordstrom (no longer a hearing officer)
    Parents: 1
    School: 2
    ---------------
    Of three Nordstrom decisions from the time period studied, 67 percent were in favor of schools and 33 percent in favor of parents.


    Owens (no longer a hearing officer)
    Parents: 1
    School: 1
    ---------------
    Of two Owens decisions from the time period studied, 50 percent percent were in favor of schools and 50 percent in favor of parents.


    Richard Roth (no longer a hearing officer)
    Parents: 1
    School: 3
    ---------------
    Of 4 Roth decisions from the time period studied, 75 percent were in favor of schools and 25 percent in favor of parents.


    Geoff Schultz (no longer a hearing officer)
    Parents: 3
    School: 0
    ---------------
    Of 3 Schultz decisions from the time period studied, 0 percent were in favor of schools and 100 percent in favor of parents.


    Cynthia Stanley (no longer a hearing officer)
    Parents: 6
    School: 3
    ---------------
    Of 9 Stanley decisions from the time period studied, 33.3 percent were in favor of schools and 66.7 percent in favor of parents.


    Julie Steck (no longer a hearing officer)
    Parents: 1
    School: 1
    ---------------
    Of two Steck decisions from the time period studied, 50 percent were in favor of schools and 50 percent in favor of parents.


    Lon Woods (no longer a hearing officer)
    Parents: 4
    School: 13
    Unknown: 1 (because pages were missing from decision provided by Indiana Department of Education)
    --------------
    Of 17 known Woods decisions from the time period studied, 76 percent were in favor of schools and 24 percent were in favor of parents.

    The following individuals serve as hearing officers in Indiana in Article 7 and IDEIA special education due process cases:

    Dr. Melody Dilk
    Attorney at Law
    Professional Psychological Services
    10293 N. Meridian St., Suite 375
    Indianapolis, IN 46290
    Phone: 317-581-2288
    Fax: 317-581-2295

    Terry R. Curry, Esq.
    111 Monument Circle, Ste. 302
    Indianapolis, IN 46204
    317-231-6325 voice
    317-231-6330 fax

    John Krauss
    815 W. 96th St.
    Indianapolis, IN 46260
    317-840-4848
    fax 317-575-9090

    Kristin Anderson
    Attorney at Law
    4167-69 Broadway
    Indianapolis, IN 46205
    Phone: 317-923-2234
    Fax: 317-283-2849


    Dennis Graft
    Attorney at Law
    P.O. Box 783
    Avilla, IN 46710
    Phone: 260-897-9800
    Fax: 260-897-9801


    Dr. Thomas Huberty
    201 N. Rose Ave.
    Bloomington, IN 4740
    Phone: 812-856-8332
    Fax: 812-856-8202


    Dr. Jim Jacobs
    School of Education
    Indiana State University
    Terre Haute, IN 47809
    Phone: 812-237-3585
    Fax: 812-237-8208


    Dr. Joseph McKinney
    Attorney at Law
    Ball State University
    TC – 915
    Muncie, IN 47306
    Phone: 765-285-8495
    Fax: 765-285-2166


    Christine Sepiol
    9529 Walnut Dr.
    Munster, IN 46321
    Phone: 708-755-1900 ext. 241
    Fax: 708-755-0000

    Texas Hearing Officers

    Steven Aleman
    Attorney at Law
    1813 Cedar Ave.
    Austin, TX 78702-1429
    512-619-4127
    fax 512-494-9523
    stevenaleman@earthlink.net

    Lucius Bunton
    Attorney at Law
    712 W. Fourteenth, Suite A
    Austin, TX 78701-1755
    lbunton@luciusbunton.com
    512-478-0077
    fax 512-478-3910

    Mary Carolyn Carmichael
    Attorney at Law
    9339 Simmons Road
    Austin, TX 78759
    512-794-9992
    fax 512-418-9022
    nancarlaw@aol.com

    Lucretia Dillard
    Attorney at Law
    Independent Hearing Officer
    Dillard McElvaney & Kovach, LLP
    550 Westcott, Suite 200
    Houston, TX 77007
    Phone 713-877-1881
    Via fax 713-877-8833
    ldillard@dmkllp.com

    Ann Vevier Lockwood
    Attorney at Law
    P.O. Box 164291
    Austin, TX 78716-4291
    512-327-6169
    Via fax 512-327-6797
    avlockwood@aol.com

    Deborah McElvaney
    Attorney at Law
    Independent Hearing Officer
    Dillard McElvaney & Kovach, LLP
    550 Westcott, Suite 200
    Houston, TX 77007
    Phone 713-877-1881
    Via fax 713-877-8833
    dmcelvaney@dmkllp.com

    Sharon M. Ramage, P.C.
    Attorney at Law
    9555 Lebanon Road, Suite 602
    Frisco, TX 75035
    972-562-9890
    fax 972-377-8392
    ramagelawfirm@tx.rr.com
    smramage@tx.rr.com

    Tomas Ramirez III
    Attorney at Law
    P.O. Box 474
    Devine, TX 78016-0474
    830-741-2429
    fax 732-909-9947
    tommy@tramirezlaw.com

    Brenda Rudd
    Attorney at Law
    715 Windsong Trail
    Austin, TX 78746
    512-306-8728
    512-306-8729 fax
    brudd@austin.rr.com

    Gwendolyn Webb
    Attorney at Law
    P.O. Drawer 1329
    Austin, TX 78767-1329
    512-472-9990
    fax 512-472-3183
    gwen.hill.webb@sbcglobal.net

    Stephen Webb
    Attorney at Law
    P.O. Drawer 1329
    Austin, TX 78767-1329
    512-472-9990
    fax 512-472-3183
    webbwebblaw@sbcglobal.net

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  • Mediation

    EVERYTHING YOU EVER WANTED TO KNOW ABOUT MEDIATION BUT WERE AFRAID TO ASK

    Going into a special education case mediation, the list of “Proposed Remedies” from your due process hearing request letter is typically the starting position for the day.

    You then allow the school to respond to your list of demand as far as the things that they are willing to do and what their counteroffer will be.

    Typically, the mediator starts us all out in the same room, to give his or her spiel about how mediation works.

    The types of things that the mediator will explain about the process:

    1. It’s voluntary. You are not required to be there, and if you feel that the negotiations are not productive, you can stop them and leave. No one can order you to agree to anything or make you stay if you feel we have reached an impasse.
    2. What everyone says in terms of the offers going back and forth is considered confidential, meaning neither side can bring it up in the hearing. The reason for this is we want people to speak freely and creatively about ways to resolve their differences, without a concern that what they say will be used against them later.
    3. That the mediator is not there to pick sides. He or she doesn’t care who’s “right” or who is “wrong” like a hearing officer would. So, you won’t spend much time, if any, talking about the screwups in the past. We are allowed to, but it’s just not the best use of time to go through the litany of things the school or its employees did that you’re steamed about. What we will focus on is solutions going forward and compensatory time/services for past wrongs. That’s not to say that we cannot bring up something that happened in the past, because sometimes that’s useful to help the mediator have a context for understanding why we want something to be written a certain way in the agreement or why it’s important to us.
    4. The mediator usually will let you know that if you want to say something to him/her that you do NOT want to have repeated to the other side, that you can. Just let him/her know which things you don’t want the other side to hear. He or she will respect that.

    After the mediator gives the opening ground rules talk, he or she will put the school in one room and us in another and will shuttle back and forth between the two rooms. During a mediation, you will have a lot of down time. So, bring something to read or a laptop to check email or whatever. Otherwise, you will get bored because we likely will be there all day. Seven or eight hours is typical. I think my record mediation so far is 12 hours. Short mediations are typically unsuccessful mediations – meaning impasse is reached quickly, and the decision to end the session comes quickly because of that.

    During the mediation, since it is not a formal proceeding, when we give information to the mediator, it’s more an informal discussion than a formal speech. Either the parent or the attorney can talk, ask questions, etc.

    You'll like the process. It probably will be the most friendly interaction you've had with the school.

    Usually for my clients, I will want to meet with you about an hour prior to the mediation to go over our list of demands, answer any questions you might have, answer any questions I might have, etc., before we head to the mediation site.

    The wonderful thing about a mediation is that 90 percent of the time they are successful. That’s good because in a mediation YOU get to craft the result instead of relying on the hearing officer, who is someone who doesn’t really know you or your child, to come up with solutions to the often complicated problems that drove you to file for due process.

    This brings to mind a story. There was a judge presiding over a particularly contentious child custody situation where the parents couldn’t reach an agreement, and he turned to the father and said, “Do you love your child?” He said, “Yes. I do. Very much.”

    Then he turned to the mother and said, “And what about you? Do you love your child?” She said, “Of course, I do!”

    He then said, “Well, I don’t love your child. So, why is it that I’m the one making all these decisions for your child?”

    Anyway, in reaching a deal with the school in a mediation, we know what we’re getting and we’ve had a hand in crafting it, which is almost always better than throwing it all to chance.

    An additional advantage of a mediation is that you can ask for and get things sometimes that no hearing officer would ever order. As long as the other side agrees, pretty much anything is a possibility.

    The mark of a “good agreement” in a mediation is genuine give and some take on both sides and perhaps feeling like you might have gotten a little bit more if you had pushed a bit more but feeling relieved that it’s over.

    Not All State Mediation Systems are Created Equal

    In Texas, most of the mediators are also special education hearing officers and all are attorneys. This is especially helpful because the language and terminology inherent in special education matters can be a stumbling block for someone not familiar with them. The mediation process in special education cases in Texas is a very good system, and I highly recommend it for clients going through the special education system when differences arise between them and the school districts.

    In Indiana, by contrast, neither parents nor school districts have found the mediation system to be all that beneficial, as evidenced by the fact that schools and parents actually prefer to hire and pay for private mediators, rather than using the no-cost DOE mediators. This has been going on for several years.

    When folks would rather pay out of pocket for a mediator than use the existing system, which would provide a no-cost mediator, this is a sign of a broken system. However, this has been the case for many years, and no changes were made to Indiana’s special education mediation system, even though numerous changes to Indiana’s Article 7 special education rules were put into place in 2008.

    Perhaps some day Indiana will fix its broken mediation system, benefiting both schools and families.

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  • Options

    If you disagree with the IEP that your school is proposing, these are your options:

    1. Go along with what they're proposing anyway.
    2. Go to case conferences/IEP meetings as many times as it takes to convince them you are correct and get them to cave in.
    3. Go to case conference, reach impasse, and ask for a mediation.
    4. Go to case conference, reach impasse, and ask for a due process hearing. (With this option, you can also request a mediation after that and having a DP hearing hanging over their heads tends to make everyone a bit more "reasonable" and willing to work things out. Also, most cases DO settle, rather than going to hearing, so filing for hearing doesn't mean you're actually going to GO to a hearing.) Parents have a higher likelihood of getting what they want when there is a hearing pending.
    5. Remove your child from school and put her in a private placement at your own expense. If you decide to do this option, you MUST MUST MUST give the school at least 10 business days' written notice in advance of taking her out of the public school if you plan to seek reimbursement from them later for the cost of the private school. If you are going to seek reimbursement, you likely will face a two-year statute of limitations, so you cannot wait 10 years and then go back and sue them for reimbursement.
    6. Move your family home to a different public school district and have a fresh start.

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  • Overview for Attorneys

    Special Education Law Primer

    Children with special needs who qualify for special education services at school are protected by a variety of federal and state laws, including Indiana's 511 IAC 7 et seq. ("Article 7"), which mirrors the federal the Individuals with Disabilities Improvement Act (IDEA) and several other laws, including the Americans with Disabilities Act, No Child Left Behind Act and Section 504 of the Rehabilitation Act of 1973.

    The parents of special needs children are the enforcement mechanisms for these laws by bringing actions against the schools, interlocals and co-ops. However, unfortunately, there is a shortage of attorneys who represent families of the currently existing 170,754 special needs children in the state of Indiana, so the purpose of this article is to give general information to attorneys about the basics of the laws protecting special needs children.

    Generally, the school is charged with providing an individualized education for a child with special needs. This means that the child’s unique needs are supposed to be taken into account when the school and parents devise the child’s IEP (a multi-page document detailing what the plans are for the child’s education, such as the placement and services that the child will be provided).

    The IEP is to be written in order to be “appropriate” for the child’s needs and confer “meaningful” educational benefit to the child in the “least-restrictive environment.”

    What constitutes meaningful benefit, what is appropriate for the child and what is the “least-restrictive environment” is subject to debate in every case, given that the law doesn’t define any of those words.

    Recipe for impasse

    The law doesn’t provide for the allocation of the very best possible educational services, only an appropriate IEP designed to confer meaningful educational benefit.

    What happens in many of these cases is that the parents and school often disagree about what’s appropriate because parents generally want more or better for their children than the school is able or willing to provide, primarily because of limited resources, lack of sufficient staff and lack of staff training.

    How disputes are resolved

    When the school and parents reach an impasse as to what constitutes an appropriate education plan for the child, there are three mechanisms to resolve these differences.

    They are: complaint investigation, mediation and due process.

    With a complaint investigation, an individual employed by the Indiana Department of Education would interview the parents and the school about what happened (or not), gather documents and issue a decision and corrective action, if the law was violated. This process costs parents nothing. Results of complaint investigations are posted at http://ideanet.doe.state.in.us/exceptional/speced/complaint_investigations.

    With a mediation, the Indiana DOE would choose a mediator for the process, and it works much like mediation in other areas of law, though attorneys on both sides are strongly discouraged from attending these special education mediations. The school would pick up the cost of the mediator’s fee.

    With due process, an independent hearing officer is assigned from a rotating list kept by the Indiana DOE. This individual would conduct an administrative hearing and issue a decision on whether the child’s substantive or procedural due process rights in Article 7 and the IDEA have been violated.

    Indiana’s special education law mirrors the IDEA, though there are a few minor differences. The cost of the hearing is borne by the school, including the transcript, hearing officer’s fees (although Indiana’s DOE states strongly on its website and if you should inquire, that the hearing officers, although they are paid by the schools, are NOT employees of the school), their own attorney, and if the parent prevails, the school picks up the attorney costs for the parent.

    This attorney fee shifting occurs because these due process cases are seen as civil rights matters, and payment of the attorney fees for parents is provided in both the IDEA and Article 7.

    The federal and state laws provide that the family can have a decision in hand within 45 days of their request for hearing being submitted to the Indiana Department of Education. However, as a practical matter, more often than not, the process takes two to three months to get the decision in hand because it requires the coordination of the schedules of two attorneys and a hearing officer, with the average hearing lasting three days.

    The IHOs in Indiana are well-versed in special education laws and various areas of disabilities. They include private practitioners with special interests in this area of law and psychology professors at various Indiana colleges and universities. Most have been serving as hearing officers for a number of years, though a new crop of four hearing officers is currently being trained by the Indiana DOE.

    After the IHO renders a decision, either party may appeal that decision to the Board of Special Education Appeals (BSEA) within 30 days, unless a request for an extension of time is granted. Then the opposing party has 10 days to respond, unless an extension is granted. BSEA decisions are posted online at http://ideanet.doe.state.in.us/legal/appeals.html.

    Hot topics in special education law

    There are a variety of reasons that schools and parents reach an impasse about what constitutes an appropriate IEP for the child. Common areas of dispute are:

    Autism cases

    Parents of children with autism want schools to utilize a type of therapy with the children that has proven scientifically to enable a high number of children with autism to eventually be placed in the mainstream classroom. However, this therapy (usually called Applied Behavior Analysis, Applied Verbal Behavior therapy or discreet trial training) is quite expensive to implement because it requires the use of one-on-one assistance for the child. Schools simply haven’t been given the funds or training to provide this one on one therapy, so they don’t offer this option to parents, creating a recipe for impasse.

    Behavior problems

    If a child has behaviors that impede his learning or the learning of others, then the school would need to conduct a functional behavior assessment (FBA) that takes a data intensive view of what leads up to the behavior (antecedent), what the behavior is and what the consequences are. Then after the FBA is conducted, a Behavior Intervention Plan is written up and incorporated into the child’s IEP. This BIP is designed to help teachers appropriately handle any misbehaviors of the child and keep things on track.

    For example, in one recent case, a child with autism, when given something particularly challenging for him, would bang his head on the table as an avoidance tactic because when he would do that, the teacher would stop what she was doing and comfort him. Although this might be a natural reaction for the teacher, that type of reaction reinforced the head banging for the child and increased the likelihood he would keep doing it. The goal of a well-designed BIP is to extinguish these types of behaviors and replace them with appropriate behaviors.

    Dyslexia

    Children with dyslexia learn to read differently from their peers and often require different methods and some more intensive assistance in learning to read than the schools are able and willing to provide. In Indiana, even though dyslexia is specifically named in Article 7, children with dyslexia are lumped into the much larger learning disability category, with a variety of other disorders. Schools often are reluctant to put in writing that a child even has dyslexia and instead will categorize the child as having a learning disability. This troubles parents, who want to call a spade a spade and who want early intensive programs designed to remediate the child’s dyslexia.

    Suspensions/Expulsions

    Removal of a special needs child from school for misbehavior is a different proposition than for a regular education child.

    A student with a disability may be suspended for up to 10 consecutive school days for misconduct. The school doesn’t have to provide any educational services during the first 10 days of suspension in a school year. The school may suspend a student for up to 10 consecutive school days for each separate incident of misconduct. However, when the number of days of suspension in a school year reaches the 11th day, the school must provide educational services to the student and must convene a case conference committee meeting within 10 busienss days of the 11th day of suspension to develop a plan for an assessment of the students behavior and review and/or revise the students exhisting behavior plan.

    A student with a disability maybe expelled. However, before an expulsion can occur, the school must notify the parent of the decision on the day the decision is made, provide the parents with a copy of their notice of rights, convent a case conference committee within 10 school days of the decision to expel the student and conduct a manifestation determination.

    This determination means the committee looks at whether the behavior was caused by the child’s disability or whether it was a willful choice not caused by the disability.

    If the behavior was caused by the child’s disability, then that cannot serve as a basis for expulsion.

    If the behavior was not caused by the child’s disability, then the child may be expelled, but educational services must be provided to the child so that he or she can continue to make educational progress.

    However, parents who disagree with this decision can request an expedited due process hearing.

    Finally, a child who has not yet been identified by the school as having a disability but who is being suspended for more than 10 days or expelled can invoke the protections of the IDEA and Article 7 if the school knew or should have known that the child had a disability but failed to evaluate the child and failed to provide appropriate educational services.

    Although this article is an oversimplification of this fascinating area of law, the hope is that this information will be useful to other practitioners who receive calls from parents, asking what their legal rights are.

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  • Resolution Chart

    Introduction:

    It is often difficult for parents to remember and to clarify what issues have been discussed, resolved and solved or not solved during IEP meetings.

    While parents may tape IEP meetings in some districts, parents may find that it is also helpful to keep a chart of what happened. Here is a chart that Kerr Law Office has found useful for that purpose.

    Directions for use of chart: Write down the concerns you have in the far left hand column and your proposed solutions. Take the chart to the meeting. If you want, you can hand it out. But, you don't have to. During the meeting, ask that the school address each of your items. If the school won't address the item, write that down under the column of the school's response. If the school addresses the item but is hesitant to give you an answer, tell the school you will assume the answer is no because they haven't said yes. If the school says that is not the answer, offer to have a school person write in the school's response.

    Should the school not want to do that, write in no.

    Remember that the hope is to get to "resolved." If any item is reached as resolved, write it down and have somebody from the school initial the response so that there aren't disputes later. At the end of the meeting, go through your list and the school's response to be sure you did not misunderstand something.

    Keep a copy of this list in your home file.

    Name of Child Date of Meeting:
       
    Parent's Issue/Solution School's Response Resolved?
    Joe needs more OT time to help him write; parents suggest 30 minutes a day. Okay; 30 minutes a week. No
    Sally needs to improve her reading. Parents suggest 1 hour a day of 1:1 Orton-Gillingham services No
    Jeremy needs to increase his social skills; parents would like less time in special education and more time in mainstream. No (non response)

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  • Resolution sessions

    Greetings. The tips below are designed to help you with your resolution session in your IDEIA/Article 7 due process case.

    Why do we go to a resolution session?

    The resolution session is the IDEiA’s attempt to try to get the parties to resolve their differences short of hearing, which is almost always a good thing.

    Even if you end up NOT resolving matters in the resolution session, it’s a way for you to show the hearing officer that you are willing to make a good-faith effort to try to resolve your case.

    Even though there are several reasons that make it less likely that the issues can be resolved at a resolution session (including the fact that the emotions are still raw on both sides that close to the time the hearing is requested and also that the same exact parties usually have already met several times in the past without resolving the matters), it is still worth it to try to agree early on.

    Do the attorneys normally attend the resolution session?

    No. In fact, the IDEIA specifically discourages the attendance of counsel for either side. If the parents insist on having their counsel there, then the school has the right to have counsel there. However, the opposite is not true. The school cannot have their attorney there without the parent’s attorney also there.

    Further, the IDEIA says that attorney fees are not available for attorneys to attend the resolution session, meaning if you want your attorney there, you have to pay that cost out of pocket, which can be pricey if you include the drive time, mileage and time at the resolution session itself.

    Who will be there?

    Usually, the attendees of a resolution session are the parents, the school’s special education director and the cooperative’s director (if you have a cooperative). Because it is not a case conference, the full complement of people need not be there.

    What’s the first thing we should do after the resolution session starts?

    Handwrite on a piece of paper the following:

    "I agree that the purpose of this meeting today on _____________ (date) is a “resolution session” as required by the IDEIA and that this is not a case conference. I agree that nothing that is said today will be presented in any due process hearing, either in written documents or in testimony. I understand that the purpose of today’s meeting is not to rewrite the student’s IEP."

    Then collect the signatures of everyone at the resolution session, including yourselves and mail this document to me, keeping a photocopy of it for your records.

    Can I leave any time I want?

    Yes. Although you must make a good-faith effort to participate in the session, there is no requirement in the law that you must stay until the school says it’s OK to go. They are not in charge of the resolution session. You are an equal participant and have as much right to say it’s over as the school employees do. Nor is there a requirement in the law that everyone must stay for a certain period of time.

    If during the resolution session, you feel you are being badgered or abused or you feel that the discussions in the resolution session are not moving you closer to resolving all of the issues in your case, then you can leave. In fact, some families choose to leave if the school folks won’t sign the agreement to have the “resolution session” talks be considered confidential.

    Since the purpose of the resolution session is to come to a resolution, please ask the school to respond to our “Proposed Resolutions” in our letter requesting hearing. If they are not willing to discuss those items, then it’s likely your meeting is not going to be productive and will be a waste of everyone’s time.

    Keep in mind that even if you do not settle the case in the resolution session, I will work diligently to try to settle the case with the school’s attorney, which is, in my opinion, much more likely to result in a settlement than is a sit-down session with the same folks who you couldn’t agree with in prior case conferences.

    Should we sign a partial settlement agreement at the resolution session?

    I would advise against that because that puts you in a worse position if we do go to a hearing. School often try to resolve the really bad stuff that they did wrong and then not agree to resolve some of the other stuff (usually the weaker issues for us in the case). They do this to put themselves in a better position to win the hearing, basically leaving the stuff that they're willing to take their chances on while cleaning up the bad stuff. Therefore, it’s best to agree fully on all issues or on none of them.

    In a hearing situation, you must prevail in order to get the school to pay your attorney fees. If the school is able to eliminate the worst violations but not resolve all of the problems, that lessens the chance that you will prevail and get your attorney fees paid.

    Should we ask for the school to pay our attorney fees at the resolution session?

    Yes. Unless you are fabulously wealthy and have money to burn, you should insist on an agreement for them to pay your attorney fees for you.

    If you sign an agreement that does not include the fees, then you are stuck with paying for them yourself.

    Is it likely we’ll resolve the case at the resolution session?

    I don’t believe it’s likely that you’ll settle there because it’s too soon after the hearing was requested. You’re ticked off, or you wouldn’t have filed, and the school is ticked off that you filed for a hearing against them. Also, you’ve already been meeting with these folks in case conferences recently and weren’t able to get things resolved there. It’s not impossible that you’ll resolve things in the resolution session. I just believe the chances are low because of the factors described above.

    Is the resolution session our “last chance” to resolve the case before a hearing?

    No. Definitely not. The school’s attorney and I will work to try to resolve the case via letter-writing and phone calls back and forth. That’s the mechanism that resolves most special education cases, rather than mediations or resolution sessions.

    The fact that you do not resolve it in your resolution session will have no bearing on whether we’re able to settle the case without having to go to hearing.

    If we DO go to hearing, what’s the timeline?

    Although the due process hearing is to be completed within forty-five (45) calendar days, the times line does not begin until the earliest of the following:

    – The written decision of the parent and public agency to forgo the Resolution Session;
    – The decision of the parent and public agency to request mediation;
    – The passage of thirty (30) calendar days from the public agency’s receipt of the hearing request with no written agreement achieved through the Resolution Process. (So, see date of hearing request, add 30 days from receipt of that, plus 45 calendar days for completion of hearing.)

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  • Texas Hearing Decisions

    You can read copies of prior Texas hearing officer decisions at the following links:

    http://www.tea.state.tx.us/special.ed/hearings/

    By contrast, Indiana Hearing Officer decisions are not available online. However, they are accessible via a Public Records Access Request.

    The decisions provided below were redacted by TEA personnel and provided in response to a Public Information Act request by Philpot Law Office, P.C.

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