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: Identification Evaluation Educational Placement Provision of FAPE • 34 C.F.R. 300.507(a)(1) © Walsh Gallegos 2018 1 Speaking the Language of Special Education Litigation • Request for Due Process Hearing • Stay-Put • Resolution Session • Statute of • Prior Written Notice Limitations • 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 © Walsh Gallegos 2018 2 The Crux of This Case: Child Find 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. © Walsh Gallegos 2018 3 Eligibility Decisions and the Importance of Clear Communication: Roles & Responsibilities • 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. © Walsh Gallegos 2018 4 “But They Agreed…” May parents file a request for a special education due process hearing over an evaluation or IEP with which they agreed? 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 Statute of Limitations – 1 year Exceptions 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. Stay 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 In 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? Alert the School Attorney Immediately Begin Counting to 10 and 15 Check for Prior Written Notice Gather/Preserve/Organize ALL Student Records © Walsh Gallegos 2018 7 2. How do I respond to a Due Process Hearing Request? District’s Response to the Request for Due Process Hearing is Due Ten Days After the District Receives Notice of the Due Process Complaint Must include prior written notice, if PWN has not previously been provided to the parent Specifically 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 Who 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. Who decides who is “relevant”? –The Parent and the District Can 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.

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