We understand that you might be new to the world of special education, or simply more interested in understanding some of the specific details of what due process is and how a complaint is drafted.
I don’t know about you, but the thought of hiring a lawyer for any dispute makes me go into a near panic. Right away I start to think about just how much it is going to cost? This is especially true for parents like us who have a child with Special Needs. Is it worth the cost to hire an attorney to advocate for better or additional services for your child? Would it simply be better to take those costs and use them for services or therapies out of pocket?
Richard Isaacs, Attorney and CSNLG Founder
With the start of the 2017-2018 school year well on its way, I have noticed more due process filings by school districts against families.
A due process hearing means either party, in this case, the districts, are asking the court system to intervene and make a ruling.
While this might sound alarming at first, it is often legally necessary for school districts to take such drastic actions. The law is clear that when parents request public funding of independent educational evaluations (IEE’s) the school district must fund the assessments or file for due process to show their own assessments are appropriate. The legal standard for assessment compliance is low and the courts are routinely finding district assessments comply with the law.
As such, school districts are filing more often.
Interestingly, and unfortunately, districts sometimes file for due process even when they know their assessments are not defensible. There is a clear strategy for them here: It helps them enter into a settlement agreement to fund the requested IEEs and thereby insulate themselves from liability. They add waiver language to the proposed agreement.
School districts are also filing more often to defend the appropriateness of their IEP offer. While the law merely states the school district may file to enforce its IEP, court decisions have recently come out holding districts liable if they do not file for due process. The ruling expects them to seek judicial intervention in overriding a parent’s lack of consent to necessary educational services. In other words, if parents do not fully consent to the proposed IEP, and the District believes the services are necessary, they are required to file for due process.
This is an unfortunate development in the law because it now elevates an IEP dispute to the litigation level. Parents are practically forced to hire an attorney to defend against the school district’s lawsuit.
Sadly, a recent court case has also called into question whether families can be represented at the administrative court level by educational advocates. For families who could not afford an attorney and advocate is a much less expensive option.
This appears to no longer be the case.
It is strange that the state of California is taking such an aggressive stance against parents who have children with special needs. With the increased filings against families, the shrinking of options parents have to defend themselves, California is moving backward.
If your school district ever files for due process against you it is important to seek legal advice on how to move forward. Regardless if you hire an attorney or not, you should at least contact an attorney who specializes in special education law and obtain a clear understanding of your rights. The Office of Administrative Hearings (OAH) has a list of low cost and free attorneys you can use to find a law firm that you feel comfortable working with.
As always, we are happy to help too.
An independent educational evaluation (IEE) may be requested by parents when they do not agree with a district’s results or it is not seen as comprehensive enough.
As a parent, you have the right to request an IEE at the district’s expense if you do not agree with their evaluation. Once you have made the request the district has two choices: to approve and fund the evaluation or to deny it and file a due process complaint against you.
Here are a few IEE facts that we want you to be aware of:
- If your district approves your request for an IEE, they cannot limit your choices. Most of the time districts will send you a list of what they consider “approved” assessors and a maximum amount they will pay for the evaluations.
- This list is merely a suggestion by the district and we do not recommend using assessors on this list. CSNLG has a great list of assessors who provide helpful and comprehensive evaluations.
- A district cannot give you an expense cap in order to prevent you from obtaining an evaluation from a qualified assessor. Although there is no law preventing districts from trying to place these limits on you, it is possible to challenge them to provide you with the best evaluation possible.
- Recently we have come across a new limit being given to parents, a restriction regarding the mileage between the assessor and the district. There is also no law to limit the location of a provider and you may consider challenging this limit if it occurs.
- An IEP must consider these evaluations and the comments and recommendations of the evaluator. The independent assessor typically has a more comprehensive evaluation than the district assessor. More times than not these evaluations bring to light other areas of need that had been missed with more vague evaluations.
Fighting a district’s limitations may be stressful and draining. It is always best to consider the trade off’s between accepting a district’s limits and the effort it will take to overcome it.
Steps to Consider Before Contacting a Special Education Attorney
Having a child with special needs can be trying, but as a parent, you likely believe that your child’s school is doing what they can to help. Unfortunately, there are times when a school just doesn’t pull its weight when it comes toeducating special needs children.
When it becomes apparent that your child isn’t receiving the experience that they need, it may be time to consult with a special education attorney; the only question is: when is enough enough? Going through the process of interviewing and–eventually–hiring the candidate right for your situation can seem like a daunting task, but it’s vital to the effectiveness of your choices to keep in mind just what a special education attorney can do. They can be equal parts friend, mentor, advisor, and bodyguardI. n the end, they stand with you and your family.
Before you hire a special education attorney, use these tips to try and help your child get the education they deserve.
Image Courtesy of FlickrTalk to Your Child
Before you do anything, it’s important to talk to your child whenever possible about conditions at school. In some cases you may be able to work with your children to simply change their situation or understand more about what’s going on.
Of course this may not work with all children in special needs classes, but if you can have an open dialogue with your child about their education you should attempt to do so. Some problems – ones your child definitely cannot resolve even with your help – don’t require this step.
Speak with Your Child’s Teacher
Problems at school for your child often begin in the classroom. While many special education teachers do everything they can to help students, they do make mistakes and there may be times when they are not aware of your child’s particular learning difficulties.
Taking time to talk with your child’s teacher may help clarify a problem, and see that it gets special attention in the classroom. You’ll need to set a meeting with your teacher and request progress reports in the future to make sure changes have been implemented, especially if you feel your child wasn’t getting proper attention before.
Work with School Administrators
Serious problems with your child’s education may not need the help of a teacher and there may not be anything that they can do. Examples include overcrowded classrooms, or simply poor instructors who aren’t working properly with your child or other children in class.
When this happens you’ll want to go right to your child’s school’s administrator. Explain your problems and let them know that if they aren’t resolved in a timely fashion that you will have to move your child and discuss your issues with the school board.
Contact the School Board
Contacting the school board should generally be your last resort to correct a situation in your child’s school. These types of meetings should be reserved for major issues that even school administrators may not be able to work out – like teachers not showing up for classes orpoor treatment of students.
It may take some time to get a meeting with your child’s school board, so make sure you let them know you want one as soon as you are aware of a serious problem.
Inherently, school teachers and administrators desire to teach. They want to help children to see their full potential. In some cases, however, this isn’t the case. A special education attorney can help your special needs child get the education that they deserve using the world continuing education alliance. While most school administrators and teachers want to do a good job there are some bad eggs and just plain bad systems that need to be dealt with.
Most children spend the majority of their day in a public school setting, so there is an important responsibility placed on schools for their role in the children’s lives. With a responsibility that nature, there is also a large possibility of disputes arising over a variety of situations, school actions which if handled poorly can lead to lawsuits and big Pharma class actions filed against the school district.
Bullying and Harassment
In the case of bullying and harassment, is is inaction, or failure to prevent or stop the bullying, for which school districts are most often sued. Each state has different laws regarding what school districts are required to do or not do, there are several things every school should do that will increase the safety and wellbeing of its students, as well as prevent potential lawsuits.
These steps include:
Assessing Bullying in the School
Find out when, where and how often bullying is occurring. This can be done through official surveys, asking general questions and performing subtle observations when students interact. Conduct this survey at least once a year, and ensure that respondents’ information will be kept private at all times.
Engaging the Community
Campaign in the community to increase awareness of what bullying is and how to end it. Parents should be treated as partners in the process of helping students feel safe at school.
Establish a Safe School Environment
Nurture a culture of tolerance and acceptance in all aspects of the school, from teachers’ meetings to the PTA to students’ group projects. Draw up a list of rules for treatment of others in the school that must be followed by everyone at all times. Monitor areas where bullying often occurs, and enlist school staff in keeping an eye on student interactions.
Discrimination
Lawsuits are also filed against schools for discrimination, especially in regards to students in special education programs. Discrimination can occur in many areas- admissions, grading, class placement and personal instruction, among others. Because it covers such a wide span of potential issues, it highlights the importance of school districts treating each student equally, and providing extra help to those who require it.
Retaliation
School districts can also be sued for retaliation, as in the case of Pamella Settlegoode v. Portland Public Schools. Ms. Settlegoode was a physical education teacher who was struck by the inequalities in services for her students with disabilities. After advocating for these students, the school retaliated by firing her and blackballing her from gaining employment at any other area school. After the difficult trial, she was awarded one million dollars.
Interference with Right
Interference with a student’s constitutional rights are also grounds for a lawsuit against a school district. Whether a student’s rights have been violated is determined by what is called the “Tinker test,” after the landmark case, Tinker v. Des Moines Independent Community School District. In this case, the court ruled that the first amendment applied to public schools, and that the school could not restrict students’ free speech unless it was proven to be disruptive to education. The Tinker test is now applied in all instances in which a school district is accused of limiting free speech.
To learn more about school districts and legal proceedings, take a look at the cases mentioned. For school districts to avoid being involved in lawsuits, they must take exacting steps to ensure each student and staff member feels safe, receives the best education possible (if a student), is not targeted in any way by the school, and is not deprived of any constitutional rights.
If you would like to get more information on these topics and more come to the Special Education Laws Made Simple Seminar Monday, May 19th in Orange, CA!
Your child’s education is rightly very important to you, so if ever any issues arise between you and the school, it’s important you know that there are special procedures in place for resolving disputes: mediation and due process hearings.
An initial response to a dispute is often mediation, where you and a school representative will meet with a neutral third party to discuss the issue. The mediator has no authority to impose a decision, and is there only to facilitate discussion in order to help you and the school reach an acceptable compromise. If you are not satisfied by the results of mediation, you may proceed to a due process hearing. If you are not interested in mediation at all, you may go directly to the due process hearing.
Every person in California is guaranteed due process by the state and federal Constitutions. Due process protects individuals’ rights, and in this case, specifically the rights of students in special education programs.
What is a Due Process Hearing?
It is an official, legal procedure meant to resolve differences between parents and their child’s school as concerns special education services and a free and appropriate public education. They are most often held over disagreements about a child’s evaluation, eligibility or placement, services such as aides and specialists, changes to a child’s IEP, or a child’s suspension. Both the parent and the school district have the right to file for a hearing. The party who files is responsible for proving whether the child’s rights are being respected.
How to Request a Due Process Hearing
Send a written request, called a Due Process Complaint, to the state and the school district. This must be filed within two years after you are aware of the issue. It must include:
- Child’s name, address and school
- Parental contact information
- Description of the reason for requesting a hearing as relates to the child’s education
- Proposed solution to the problem
It can also include the sections of federal and state codes that you believe have been violated.
You may increase your chance of success by hiring a lawyer or special education advocate, though legal costs can add up very quickly. The school district is not required to pay your legal fees.
However, filing a Due Process Complaint can incur fees and added stress, so it is wise to only go this route if absolutely necessary. You should always try every available opportunity for mediation and collaboration with the school district before resorting to filing for a due process hearing.
During the Due Process Procedure
After filing a Due Process Complaint, the student has the right to stay in his or her current placement and use the current IEP.
Since this can be a very stressful time, do all you can to stay organized and informed of the events. Be able to clearly define the school’s position and reasoning, as well as your concerns and proposed resolutions so as to hopefully avoid becoming overly emotional in the hearing. Most importantly, rather than getting caught up in the red tape, remember why you’re doing it- to help your child get the best education possible.
Timeline of the Procedure
After the parent files a request for a due process hearing
Within 10 days: the school must offer a resolution meeting or agree to proceed with the hearing.
Within 15 days: the school district must notify if it is challenging the complaint’s sufficiency, offer a resolution meeting, or agree to go forward with the hearing.
Within 75 days: the Office of Administrative Hearings decision must issue a decision.
If mediation is requested, this will occur approximately 35 days after the filing date. The due process hearing will usually be held about 55 days after the request is filed, and a prehearing conference will be scheduled one week earlier.
The Office of Administrative Hearings must issue a final decision within 45 days of the Due Process Hearing.
More Information
More guidance on preparing for and completing the Due Process Hearing is available from California’s Office of Administrative Hearings.
If you would like to get more information on these topics and more come to the Special Education Laws Made Simple Seminar Monday, May 19th in Orange, CA!
LRE, mainstreaming and inclusion are essential terms to know when working with a student in special education programs. These elements of students’ IEPs will determine how they spend their time at school, how they receive services and how they function within the school’s community, among many other things.
What is LRE?
LRE stands for Least Restrictive Environment, and it refers to the situation that will allow a special education student to receive the education most suited to his or her needs, while spending the most amount of time possible learning alongside their peers without disabilities. LRE dictates that separate classes should only be held for special education students if nature or severity of their disabilities preclude satisfactory education from occurring in a regular classroom.
LRE recognizes that for a child with disabilities to be educated appropriately in a regular educational environment, additional services and aids may be necessary, and indeed, can play a pivotal role in the child’s development. The addition of these resources is nearly always preferable to educating the child in a separate setting.
LRE guidelines also state that education for the child with special needs is to be “achieved satisfactorily.” This language is not vague with the intention of permitting these students to receive subpar education; on the contrary, it allows each child’s IEP team to determine what constitutes satisfactory results for the student.
These standards benefit special education students by allowing them to learn with their peers in a cohesive environment, rather than learning in a separate space that distances them from their fellow students.
What is mainstreaming?
Mainstreaming is the term used to describe integrating students with disabilities into regular learning environments. Mainstreamed students have high potential for success, but it is vital that they receive support personalized for their needs by their IEP team. It is bringing special education services to the child rather than removing the child from the regular classroom.
Benefits of mainstreaming often include higher academic success, increased self-esteem and more astute social skills.
What is inclusion?
Inclusion is the process of mainstreaming a student to comply with LRE. For students with disabilities, advantages to this process are the opportunity to form friendships with their peers from whom they would have been separated if educated in a separate classroom. It allows students with disabilities to interact with non-disabled students to the benefit of all; they will all learn how to work together, gaining invaluable skills for the future. Students taught in a classroom with inclusion will learn to be more accepting and respectful of people from different backgrounds.
Additionally, families of students with disabilities will be able to integrate more easily into the community of the school, creating those relationships between parents that lead to friendships between children and more opportunities for socializing.
Who decides where the child is placed?
The decision for where the child will be educated is up to his or her IEP team, of which the child should also be a part, when they have reached a suitable level of maturity. The IEP team will consider the student’s academic and social history, goals and specific needs.
Placement can be changed whenever it is decided that the current situation is not beneficial to the student, or can be improved in any way.
Why are these terms important?
With LRE guidelines, mainstreaming and inclusion, special education students are poised to receive the most effective and appropriate education possible. Everyone involved in a student’s IEP team should be knowledgeable of the processes and advantages involved in LRE.
If you would like to get more information on these topics and more come to the Special Education Laws Made Simple Seminar Monday, May 19th in Orange, CA!
Do you think all children should receive the same education, regardless of individual strengths and weaknesses?
Probably not, and thankfully neither does the US Congress. In fact, it’s required to compose an Individualized Education Program (IEP) for every student in a special education course to ensure they are learning in the way that is most effective for them. IEPs serve an important purpose, so let’s take a look at how to make them most beneficial.
Team Meetings: Who, What, When, Why, and How to Make Them Successful
Who should be on a child’s IEP team?
- A school district representative
- The child’s regular education teacher, if he or she has one
- The child’s special education teacher or provider
- Parent or guardian of the child
- The child!
The team meeting is held within 30 days of the decision that the child will be provided special education, and is an essential step in creating an effective IEP! Not only is it required before special education services will begin, it’s also where the student’s goals will be outlined, and where the services provided by the school district will be defined.
Parent Participation
No one knows the child better than the parents. Their knowledge and input is indispensable at this stage. Parents who are informed and involved both at school and home can make all the difference.
Process and Components
The school will set times for team meetings, during which the child’s IEP team will work together to create the IEP and organize its implementation. It’s important to have high expectations for the student and to establish achievable goals. Make sure the frequency of services is sufficient for the student to reach the goals, too!
What should be included in the IEP?
- The child’s current level of achievement
- Annual goals for the child
- The special education services to be provided for the child
- How much of the day the child will be in special education
- How required assessments will be administered
- Where and how often services will be provided, and for how long
- How the child’s progress toward annual goals will be measured
IEP Implementation
This should occur as soon as possible after the team meeting! Follow up meetings can be scheduled for periodic checkups to ensure the IEP is serving its purpose, and to amend it if necessary.
Amending IEPs
Another meeting is not required in order to amend the IEP. The school and the child’s parents can draw up a written amendment, and all members of the committee must be informed of the changes.
Transition Requirements
Sweet 16! When the student reaches this age, it’s time to start making plans for life post-school. Whether that involves college, employment, independent living, or other options, this is a vital period for prevention of the student dropping out of high school, and also for setting up a successful future. Some transition services that can be included are instruction, vocational training, and life skills practice.
Extended School Year (ESY)
ESY programs are additional services provided outside the school day, be it in the hours after school or days during school breaks, such as summer vacation. The student’s need and eligibility for ESY will be determined by the IEP team, preferably during the initial IEP team meeting.
These programs are not necessarily a continuation of the special education programs, and are often focused on subjects such as reading instruction or speech therapy.
State laws vary regarding ESY programs, so make sure to learn the specifics for your area.
That’s a lot to know!
IEPs can be an overwhelming prospect, but remember that it won’t be set in stone, and can be changed as the child’s needs change, or even as the IEP team gains more knowledge. With a bit of work can be one of the most effective tools for the student’ s education. After all, its purpose is to help the child succeed, and that’s a cause everyone can support.
If you would like to get more information on these topics and more come to the Special Education Laws Made Simple Seminar Monday, May 19th in Orange, CA!
As the number of children with autism or learning disabilities across the United States continues to grow, and legislation designed to oversee the education of these children is increasingly drawn upon, it is no small wonder that those schooled in law are looking to become a special education lawyer because they are needed now more than ever.
Those who have studied and practice in education law and have experience in special education issues can help parents navigate the legal complexities of this area of the law. More often than not, a special education lawyer helps to resolve matters of dispute more effectively and efficiently than can parents alone.
Defining a Special Education Lawyer
Special education lawyers must be familiar with all aspects of education law, such as education reform and student and teacher civil rights. It is also helpful for special education lawyers to be familiar with autism and all types of learning disabilities.
In addition, they need to have a strong understanding of all federal and state legislation regarding special education. They need to have knowledge of the Individuals with Disabilities Education Act (IDEA), the Americans with Disabilities Act and the Rehabilitation Act of 1973 (most notably Section 504, which protects those with disabilities from being discriminated against from any organization).
Special education lawyers mainly help to develop an Individual Education Program (IEP) for a special needs child. This is a plan describing how a school will educate a particular special needs child. Special education lawyers can also help mediate disagreements between parents and schools if an IEP is not adhered to, or if other problems arise concerning how the child is educated.
Advocating for the Special Needs Child
In many cases, parents become advocates for their children when it comes to education. However, many parents are simply not knowledgeable in areas of negotiation, legal communication or due process when problems concerning their special needs child or children arise. Some parents simply don’t have the time nor the resources to adequately prepare and present their arguments.
This is where special education lawyers come in.
“A good attorney can advise a parent how to obtain a better program and services, how to effectively advocate for the child,” says David A. Sherman, a special education lawyer for Medical malpractice lawyers phoenix, he also wrote: “Autism: Asserting Your Child’s Right to a Special Education.” Source: (http://www.baizlaw.com/practice-areas/medical-malpractice)
What’s more, Sherman says, “A special education attorney will advise a parent as to how to assert their child’s numerous and substantial rights.”
Going the Extra (Special) Mile
Do special education lawyers do more than any other type of lawyer? On the surface, no. They file documents, attend meetings and hearings, write briefs…in short, do all of the things any lawyer would do no matter the nature of the issue, whether it be a criminal case, divorce proceeding or child custody battle.
But special education lawyers perform a service that other lawyers do not: they bring a voice to those who may not be able to speak for themselves. In many cases, defendants can go to the stand on their own behalf. Some even become active participants in the preparation of their defense.
Special needs children do not have this luxury. They do not understand the laws that are being broken when the school they attend does not honor their IEPs or federal legislative mandates. Most parents are not well versed in these laws. It is the special education lawyer who must act as advocate for these special needs children.
And not just your average advocate, but one who is armed with the legal knowledge and mediation skills needed to get the job done. Considering the importance of what’s at stake (a fair education for all), the impact of a special education lawyer cannot be understated.