This is a transcript of the fifth edition of CSNLG’s podcast Special Education Matters. In this podcast, our host Michael Boll and lead attorney Richard Isaacs discuss what families should do if the school district files a lawsuit against the family. The podcast can be found here.

0:00 Michael Boll

You’re listening to Special Education Matters, a regular podcast about things that matter in special education. I’m your host, Michael Boll, and I am the proud father of an 18 year old boy with autism. I’m here to introduce a special series we are running on our podcast, Special Education Matters. Our lead attorney, Richard Isaacs, and others, will be discussing the process and steps that happen when a parent decides to work with us. Sometimes a district may be required or feel compelled to file a lawsuit against a parent. California Special Needs Law Group attorney, Richard Isaacs and I discuss that possibility.

Now, if you have a child on an IEP and you don’t necessarily agree with the IEP and you don’t sign the IEP, the district may respond by filing a due process complaint essentially suing you as the parent, right? Talk about that, because that freaks me out.

0:50 Richard Isaacs

Yeah, it’s a pretty scary thing for families when your own school district decides to file a lawsuit against you. There’s two situations and they’re not as scary as they sound once you break them down. The first situation is if a parent requests an outside assessment funded by the school district, so if they request an IEE, an Independent Educational Evaluation, and the school district says, ‘You know what? We’re gonna defend our assessment.’ The law requires that they file a lawsuit to defend their assessment. The parent could pull the request and say, ‘Okay, I don’t want you to fund it anymore’ and the lawsuit goes away. And that’s usually what happens. The second time that the district can file a suit – and actually, I should clarify that. There’s a couple of sections in the law that says that the district may file, and there’s a couple of sections where they say they shall file of. Shall meaning they have to file, and that’s the IEE issue.

The district can also file to enforce its IEP offer if a parent doesn’t consent to the IEP. Now, this is not the initial IEP. So if you’re unhappy and you just don’t want special education, they’re not gonna file against you.

2:04 MB

Right, so this is where the districts coming and saying they want an IEP, instead of the reverse where it’s usually the parents saying they want an IEP.

2:10 RI

Correct. And you can always withdraw your consent to the IEP, so you can withdraw your consent from special education and they’re not going to sue you. There’s a host of other problems that may rise with that in a sense where your child’s not getting the services, they could be suspended for behaviors where the IEP would protect them and such like that. But if you disagree with the IEP offer and the district thinks it’s appropriate or if you want a different placement and you’re paying for it – for example, we have a lot of families that will disagree with the districts offer of placement and they’ll fund for a private school. Well, the district can then sue you to say, ‘We’re not gonna pay for that private school. We’re gonna defend our placement offer’. And that’s the second situation. So usually that comes into play when the family files suit against the school district for reimbursement of a placement. The district will then turn around and sue the family to defend its placement. And they’re approach is, ‘You sued us, we’re gonna suit you now’, and then things get into the litigation process. When the district does file suit or initiates suit, there is a difference between when family sues. The time frame is much shorter. So when the family files suit, there’s a 30 day resolution period, and then the court has to have a decision within 45 days. So there’s about 75 days for things to work out, absent any continuances. When the district files there is no resolution period, so a decision has to be held with him 45 days.

3:39 MB

So it’s much faster then, so the parents are freaking out at that point at that point

3:43 RI

It is a pretty scary thing.

3:45 MB

If they don’t expect it, yeah.

3:48 RI

Correct, when you get an order from the court saying that there’s a hearing four weeks from now, and then there’s a pre hearing conference with the court three weeks from now. So within three weeks you have dates on the court calendar and you don’t know what to do. And we do get a lot of calls at that point where families are, and we can calm them down, they can get a continuance…

4:07 MB

Tell me about that – is it one of those ‘Hi Rich, how are you?’ or is the ‘aaahh!’ freaking out parent?…that would be me.

4:11 RI

[chuckles]

No, for sure, it is a scary thing when the government, the school district, is filing suit, and it’s your child. But again, it doesn’t change anything, we can usually work it out. Sometimes we just countersue, and we join the two cases together, we consolidate them, and we get new dates set. We typically, as a law firm, like to be in control of the lawsuit. Meaning, if the district’s gonna file, we’re gonna file, and we’re gonna take charge of the lawsuit. And the OAH, the way that they run it, is they often make our case – the students’ case the controlling case for date purposes and scheduling purposes. I inform parents all the time, ‘It’s okay, take a deep breath, we’ll work this out.’ Because when you request an IEE, they have to file. It’s not personal. They have to actually file against the family, or they’re violating the law, or they just fund the assessment.

5:03 MB

Is it realistic of you to represent yourself, or is it not?

5:06 RI

That’s actually a really good point because I think this is great. Especially on the IEE issues, meaning the parent has requested an independent assessment. The district said no and has filed suit. I read every decision that comes out and there are plenty of decisions where parents will take it on their own and they’ll win because the judge is looking at it and it gives a lot more leverage – or should say leverage is not the right word – they go a lot more lenient, sometimes, to parents without representation. And they’ll look at it openly. And I’ve even seen it – and this is interesting – where the parent didn’t even show up for a hearing and the district lost. So their assessment was so poor, they couldn’t even convince a judge that it was appropriate. Obviously, as an attorney, I would never advise a client to go alone, but it can happen, and parents have been quite successful dealing with that.

6:01 MB

Okay. So let’s recap here. If you find out that the district has filed a lawsuit against you, what steps should you do?

6:11 RI

So 1. I would consult with an attorney. And there’s plenty of attorneys that should be able to give just quick free consultations and give the client, or give the family, enough point in the direction here, even if that’s just contacting OAH, the court, and getting a continuance. But definitely my first piece of advice would be contact a Special Ed attorney.

6:35 MB

And OAH, again, stands for Office of Administrative Hearings

6:37 RI

Correct, and they have a list of advocates and attorneys that they can send you. You can go on their website and can get it, but definitely, definitely just speak with an attorney, because there might be other issues involved. Sometimes, and I’ve been able to do this, just quickly reach out ’cause I know the opposing counsel for the school district, and just stop. Just put a pause to everything. Or just, within an email or a call, get the assessment, fund it in the due process complaint. Every case is unique, and that’s why I think it’s important that an attorney just listens to it and then points the family in the right direction. And if the family wants to fight it definitely bring on an attorney to help you navigate it.

7:15 MB

Alright, so I think that wraps us up for today then.

Thanks for listening to another edition of Special Education Matters. For more information, including show notes, head to our website, csnlg.com/listen. And if you like what you hear, please consider giving us a review on iTunes. Those reviews bring us lots of happiness. I’m your host Michael boll, and we will talk again soon.

This is part of our complete Beginner’s Guide to the Special Education Legal Process.