A Behind the Scenes Look at a Due Process Hearing from One School District's Perspective

A Behind the Scenes Look at a Due Process Hearing from One School District’s Perspective

Paula Maddox Roalson and Christina Garcia Walsh Gallegos Treviño Russo & Kyle Jerry Gore, South Jasper County SSA A Behind the Scenes Look at a Due Process Hearing One School District's Perspective Paula Maddox Roalson Jerry Gore Christina Garcia Director of Special Education Attorneys at Law South Jasper County SSA

“The Road Goes On Forever …” *

Discussion and take-a-ways from one case …

from one school’s perspective …

and one DPH journey that lasted for more than a year.

*Robert Earl Keen; Album “West Textures” (Nov. 10, 1989; Sugar Hill Records, Prod. Jim Rooney)

Grounds for Challenge in a DPH:

ßIdentification

ßEvaluation

ßEducational Placement

ßProvision of FAPE • 34 C.F.R. 300.507(a)(1)

• Hearing Officer(s) • Mediation

• Continuance • Disclosure

Procedural History of This DPH:

October 2016 DPH requested February 2017 Case reassigned to SEHO #2 March 2017 Petitioners requested a second DPH; cases are consolidated July 2017 Case reassigned to SEHO #3 August 2017 Hurricane Harvey Hits August 2017 Case reassigned to SEHO #4 September 2017 Motion to Recuse Hearing Officer Denied October 2017 Due Process Hearing January 2018 Decision Issued

How It Begins: Special Education Due Process Hearing Request How Will I Get the News?

Digital Communication from Texas Education Agency: “Notice of Filing of Request for a Due Process Hearing”

Notice from Parent or Legal Counsel Upon Filing

Notice must include a description of facts relating to problem and proposed resolution

34 Code of Federal Regulations § 300.111 Child find.

(a) General. (1) The State must have in effect policies and procedures to ensure that— (i) All children with disabilities residing in the State, including children with disabilities who are homeless children or are wards of the State, and children with disabilities attending private schools, regardless of the severity of their disability, and who are in need of special education and related services, are identified, located, and evaluated ; and . . .

Other Central Issues In This Case:

Whether District failed to timely and appropriately evaluate Student;

Whether District failed to devise appropriate individualized education programs ("IEP") for Student;

Whether District failed to comply with Student and Parent's procedural rights;

Whether District failed to protect Student and/or Parent from bullying, harassment, discrimination and/or retaliation

The Importance of Evaluation Data

• Timothy O. v. Paso Robles USD, 67 IDELR 227 (9 th Cir. 2016)

• Evaluation data is to the ARDC as evidence is to the jury.

• All decisions about eligibility, IEP content, and placement must be based on evaluation data.

• The ARDC reviews the EVALUATION DATA to determine if the child NEEDS special education to receive FAPE . • Note four critical elements: ARDC, Evaluation data, Need, FAPE. • This tells the parent 1) who will decide (ARD); 2) on what basis (Evaluation); and 3) with what criteria (Need for FAPE).

This Case:

• Student had displayed some behavioral issues over the three years Student was enrolled in the District. Student had displayed some academic difficulties during the same time period, but performed successfully overall and was promoted from grade to grade.

• Following a disciplinary removal, Student’s Parent sent an e-mail to an administrator, requesting an FIE of Student.

• A staff member met with the Parent the next day and obtained Parent consent for the evaluation.

• That was a Friday.

• The following Tuesday, the Student’s Parent requested the DPH.

YES.

“…nothing … would prevent a parent or public agency from filing a due process complaint regarding an IEP that is not the most recent IEP, provided that the alleged action forming the basis of the due process complaint occurred [within the limitations period]…there is no provision in the IDEA or its implementing regulations requiring that a parent agree to an IEP.” Ltr to Lipsitt, 52 IDELR 47 (OSEP 2008)

The IEE and The Battle of the Experts Like in this case, an IEE provider might serve as an expert for the parent. Considerations for the school district: • Does the District have an expert? Does the District need an expert?

Shafi A. v. Lewisville ISD, 69 IDELR 66 (E.D. Tex. 2016) • Check the IEE to see if it was done in conformity with district criteria. Have the ARDC review the IEE. You must do so per the IDEA and its regulations. Be prepared to articulate why you agree with some recommendations and not with others.

Eligibility – the Central Issue in a Child Find Case • Doe v. Cape Elizabeth School Dist., 68 IDELR 61 (1 st Cir. 2016) • “She can’t possibly be eligible. She has a 130 IQ and is making straight A’s.” WRONG. • That student is very likely not going to be eligible, but the categorical dismissal of the possibility, without evaluation data, is a problem . • Do the evaluation, and then decide.

© Walsh Gallegos 2018 5 Educational Need • Devon L. v. Clear Creek ISD, 116 LRP 38829 (S.D. Tex. 2016) • “Importantly, the determination of educational need was not for an outside provider to make but was within the judgment of the ARDC.” • “The observations of teachers who spend time daily with Devon in the educational setting are more reliable regarding educational need than those outside providers who base their opinions on isolated school observations and parent-provided information and documentation.”

But What Is “Special Ed”? • L.J. v. Pittsburg USD, 2016 WL 4547360 (9 th Cir. 2016)

• Special education is “specially designed instruction.” SDI: “Adapting…..the content, methodology or delivery of instruction.”

• In an era of differentiated instruction, RTI, 504 accommodations, and instruction aimed at the learning style of the student….does this definition have any meaning anymore?

The SEHO’s Decision In This Case: • Noted that experts for both sides agreed that Student did not demonstrate a learning disability

• Noted that Petitioners’ Expert identified an ED “diagnosis”; the District’s expert did not. Found the school evaluation inappropriate and awarded the costs of an IEE to Parent.

• But determined that Student’s educational performance was not adversely affected by the emotional disturbance cited by Petitioners’ Expert and concluded Student did not demonstrate an educational need for special education. School wins.

© Walsh Gallegos 2018 6 The SEHO Opinion In This Case, cont’d: “Academically, Student continuously made A's and B's on report cards, being on the A-B Honor Roll from time to time. [Student] moved from grade to grade throughout [Student’s] school years. Further, Student passed the STAAR reading and math tests every year with one exception. [Student] did not pass the [ ] portion in [ ] grade. District put [Student] in a [ ] lab, Student responded to the intervention, and passed the [ ] portion in [ ] grade. When considering the entire record, I do not find that Student's educational performance is adversely affected by the emotional disturbance diagnosis of Petitioner's Expert. Student is not eligible for special education services.”

Procedural Point: The SOL

ßStatute of Limitations – 1 year

ßExceptions to the Statute of Limitations: • Specific misrepresentation by District that it resolved the problem forming the basis of the complaint; or • District withholding of information from the parent that was required to be provided to the parent.

ßStay Put—Does not apply to disciplinary removals. Otherwise, Student must remain in current educational placement. Parent and District may agree to implement part/all IEP

ßIn this case, no evidence to support exception to SOL

Practice Pointers and Take-A-Ways:

1. What Do I Do First When I Receive Notice of a RDPH?

ßAlert the School Attorney Immediately ßBegin Counting to 10 and 15 ßCheck for Prior Written Notice ßGather/Preserve/Organize ALL Student Records

ßDistrict’s Response to the Request for Due Process Hearing is Due Ten Days After the District Receives Notice of the Due Process Complaint

ßMust include prior written notice, if PWN has not previously been provided to the parent

ßSpecifically addresses all issues raised in the complaint

3. What is a Resolution Session?

Purpose:

For the parent to discuss the complaint and the facts that form the basis of the complaint, so that the [school] has the opportunity to resolve the dispute that is the basis for the due process complaint.

34 C.F.R. 300.510(a)

4. Tell me more about the Resolution Session ßWho must attend? –Relevant members of the ARD committee who have specific knowledge of the facts raised in the request for due process hearing; a school representative who has decision making authority must attend. Can be waived by both parties in writing. ßWho decides who is “relevant”? –The Parent and the District ßCan the School Lawyer Come? –Only if the Parent is represented by counsel

© Walsh Gallegos 2018 8 5. But I want my attorney! District’s attorney not allowed unless parent’s attorney attends. Functional equivalent is not allowed – leaving meeting frequently to discuss strategy with District’s attorney or school attorney listening in to meeting via phone

District’s attorney may draft the settlement agreement after the Resolution Meeting

What if the parents bring an Advocate? This is still not an attorney, so the District’s attorney may not attend.

What if the Principal or the parent is an attorney? Distinguish attorney for a party vs. those with a right to be there that happen to be an attorney.

6. What if the parent refuses to participate?

The school district can request that the due process hearing be dismissed

34 C.F.R. 300.510(b).

7. What are some pointers for conducting the Resolution Session? • Use an Agenda • Make Records Available to Parent Beforehand • Have Parent Identify the Nature of Complaint • Parent Statement of Facts Supporting Complaint • Relief Requested by the Parent • School District Response • Take Deliberations • The regulations do not provide that the resolution session is confidential absent an agreement of the parties to the contrary

• Choose the participants wisely • Parent input in participants • Remember, purpose is for the parent to discuss the complaint, and facts, and give the District the opportunity to resolve the complaint • School District Response • Organize the issues • Note proposed resolution • Consider a compromise

Continued -

•Be prepared to enter into a written agreement if resolution is reached •The agreement must be signed by both the parents and the District representative •Check Board Policies regarding authority •Agreement can be voided within 3 business days of execution - 34 C.F.R. 300.510(d),(e)

Notes on Attorney’s Fees

• El Paso ISD v. R.R., 53 IDELR 175 (5th Cir. 2009)

• “Early resolution through settlement is favored under the IDEA. The statute bars an award of attorney’s fees for work performed subsequent to a written settlement offer that does not achieve anything more than that which was offered…Here EPISD offered R.R. all of his requested educational relief at the resolution meeting.

• I.W. v. Hardin-Jefferson ISD (E.D. Tex. 2017) • Our special education hearing system is set up to encourage districts to make a generous settlement offer; and to encourage parents to accept it. • Hardin-Jefferson case is a good illustration. Attorneys’ fees reduced from $101,843 to $6500.

8. Why should we compromise if we have done nothing wrong?

• It costs a lot of money to proceed with a DPH • There are no guarantees in a DPH and you risk payment of parent attorney fees • Ongoing relationship with the parents • Impact on the student

9. What about Mediation? Is that a possibility?

•Voluntary Process •Impartial Mediator

•TEA pays for the •Settlement Mediator Agreement

•District’s Attorney •Confidential May Attend

© Walsh Gallegos 2018 11 10. What practical things should we know going into a Due Process Hearing? • There are no guarantees on the outcome • You will spend far more time in preparation that you anticipate • There are usually surprises during preparation • The document issues are intensive – you will spend a lot of time collecting student records, e-mails, digital information maintained on school servers, answering discovery, etc. • Due Process Hearings are expensive in both staff resources (time away from instruction to prepare for the hearing) and legal fees

How can we avoid having a hearing requested? ‹Solid communication with Parents ‹Candid Reviews of School Climate, Culture, Accessibility, and History ‹Train Staff and Hold Staff Accountable ‹Train Parents and Students ‹Look Closely at Student Performance ‹Know When to Contact Legal Counsel

How to Reduce Liability VTake every allegation seriously VEngage in prompt remedial action VNever make decisions based on administrative convenience VAcknowledge mistakes, with the help of legal counsel, VKeep child-centered in every instead of covering them up decision VTrain, Train, Train VGo back to ARD VConduct a self audit VDocument, Document, Document VMonitor the effectiveness of services VHire a good lawyer

© Walsh Gallegos 2018 12 Paula Maddox Roalson | Christina Garcia Houston Office [email protected] | [email protected] www.walshgallegos.com 713-789-6864 The information in this presentation was created by WALSH GALLEGOS TREVIÑO RUSSO & KYLE P.C. It is intended to be used for general information only and is not to be considered specific legal advice. If specific legal advice is sought, consult an attorney.