WELCOME
Pro Bono Special
Education Training
June 2014
Welcome
• Agenda for today
• CLC and our Pro Bono Program
• Overview of the School System in Washington DC
• Overview of Special Education Law
• Case Realities
• Handling a Special Education Case: First Steps
• Filing a Due Process Complaint, Dispute Resolution,
Due Process Hearing
• 504 Plans
• Review of Materials, Questions, Potential Cases
CLC’s Pro Bono Program
• Overview of Children’s Law Center
• Pro Bono Program
• Special Education
• Adoption, Guardianship, and Custody (“Caregiver”)
• Custody Guardian ad Litem (“CGAL”)
• Eligibility
• Benefits of Taking a Pro Bono Case
• Case Placement Procedures
• Resources and Mentoring
Thank you!
Pro Bono Special Education Training
June 2014
Children’s Law Center works to give every child in the District of Columbia
a solid foundation of family, health, and education. We are the largest provider
of free legal services in the District and the only to focus on children.
Our 80-person staff partners with local pro bono attorneys to serve
more than 2,000 at-risk children each year. We use this expertise to advocate
for changes in the District’s laws, policies and programs.
Visit www.childrenslawcenter.org to learn more.
Overview of Healthy
Together and Handling
Special Education Cases
Tracy L. Goodman, Director, Healthy Together
Kathy Zeisel, Senior Supervising Attorney
Pro Bono Special Education Training
June 2014
What is a Medical Legal Partnership?
•
A healthcare delivery model that integrates legal assistance as
a vital part of the healthcare delivery system
• Expanding the conception of medical care for low income families to
include legal representation
•
Program model based on prevention
• Removing non-medical barriers to children and families’ health
and wellbeing
• Address adverse social conditions negatively impacting health
through a variety of modalities
•
MLPs work to address and prevent adverse social pressures
with legal remedies through:
• Direct Patient Contact
• Provider Training
• Systemic Advocacy
CLC’s Healthy Together: DC’s Medical
Legal Partnership for Children
“[D]ramatic
differences in
…child and adult
health outcomes
based on social
factors such as
income and
wealth…begin
early in life-even
before birth-and
accumulate over
lifetimes and
across
generations.”
Robert Wood Johnson
Fdn, Issue Brief Series:
•Children’s National Health System
• One of the oldest MLPs in the country
• In 2002 began with one lawyer
•In 2013 we now have eight lawyers and two
investigators
•A variety of Children’s National clinics and programs:
•Generations
•Four Children Health Center Locations
•Large focus on teen parents and SE residents
•Mary’s Center for Maternal and Child Health
• Began in 2010 with grant funding through Mary’s
Center’s Healthy Start Healthy Family program
• Currently working on a joint program surrounding
children and asthma
Why Special Education Cases?
•
•
•
•
•
•
Filling a community need
Hands-on lawyering
Direct advocacy
Litigation experience
Concrete results for children
Working with families
Children’s Law Center works to give every child in the District of
Columbia
a solid foundation of family, health, and education. We are the largest
provider of free legal services in the District and the only to focus on
children.
Our 80-person staff partners with local pro bono attorneys to serve
more than 2,000 at-risk children each year. We use this expertise to
advocate
for changes in the District’s laws, policies and programs.
Visit www.childrenslawcenter.org to learn more.
Overview of DC’s
School System
DCPS, Public Charter Schools,
Other Options
Tracy L. Goodman, Director, Healthy Together
Kathy Zeisel, Senior Supervising Attorney
Pro Bono Special Education Training
June 2014
School Options for DC Kids
•
•
•
•
•
•
•
•
•
Home
Early Childhood Centers (ages 0-2)
Head Start Programs (ages 3-5)
Public Schools (Pre-K through 12)
Public Charter Schools (Pre-K through 12)
Private Schools
Residential Facilities
Institutions
Hospitals
Avenues for Enrollment in DCPS Schools
• Residence in a Particular Neighborhood
• Out of Boundary Process (now through the common
lottery system with most of the Charter schools)
• Transfer (safety transfer or other special transfer)
• Placement Decision by MDT/IEP team (special
education)
• Through Hearing Officer Decision (special education)
Avenues for Enrollment in Charter Schools
• Previously, each Charter School maintained its own Application Process
• For the 2014/2015 school year, almost 90% of Charter Schools
participated in a common lottery with the DCPS out of boundary lottery
process
• http://www.myschooldc.org/
• Lottery System
• May not discriminate against students with disabilities in admission
• If over-subscribed, must maintain a waitlist
• No uniform way to manage waitlists
• By date of application
• By lottery
• Once lottery is concluded, any open spots are awarded first come, first
serve
Avenues for Enrollment in Private/Non-Public Schools
• DC Opportunity Scholarship Program/Voucher Program
• Will not cover the costs of most special education private schools.
• Typically covers the costs of parochial schools.
• Placement Decision by MDT/IEP team (full time special ed
school)
• Through Hearing Officer Decision (full time special ed
school)
• Family can pay out of pocket or get a scholarship
Getting to School
Students in DC must get themselves
to school (for DCPS or Charter School)
UNLESS
 they qualify for transportation as part
of their special education plan or under
the Americans with Disabilities Act OR
 the school provides transportation for
all students
Public School System Framework
• State Education Agency (SEA)
• In DC: Office of the State Superintendent for Education (OSSE).
• The state school system of the state in which the child resides that
oversees all LEAs in the state, see, 20 U.S.C. §1412.
• Local Education Agency (LEA)
• In DC: District of Columbia Public Schools (DCPS) or the
Independent Charter School (LEA Charter).
• The local school system of the county, city, or town in which the
child resides and oversees the day-to-day delivery of specialized
instruction and related services to children with disabilities, see,
20 U.S.C. § 1413.
Who Oversees Who…
Public Charter
School Board
OSSE
DCPS
DCPS Schools
Independent
LEA Charters
District Charters
LEA Status: Who is the LEA?
• DCPS Schools
• DCPS
• Charter Schools
• District Charter Schools: Charters that elected to
have DCPS as the LEA.
• LEA Charter Schools: School is its own LEA
• DCPS is not involved in service provision or
oversight
Why Does it Matter Who the LEA is?
• It will dictate with whom you will be advocating
• Different LEAs often have different approaches to their legal
obligations to children with disabilities
• OSSE’s relationship with DCPS as the LEA is different than its
relationship with individual LEA Charter Schools (DCMR 53019.8 and OSSE policies)
• Where DCPS is the LEA, OSSE does not interact directly with particular
schools
• Where the Charter School is their own LEA, OSSE works directly with the
school
• Most significant when a change in placement is being contemplated
• It does NOT impact legal obligations of the LEA
• A single LEA Charter school has the same legal obligation as the 120+
school DCPS system to meet the needs of all children with disabilities
Key School Players in Our Cases
• School Staff
• Special Education Coordinator (SEC)
• 504 Coordinator
• Teachers (special and general education)
• Related service providers at the schools
• School principal
• DCPS Central Office Staff
• Office of Specialized Instruction
• Compliance specialists
• LEA Progress monitors (at District charter schools and non-public
special education schools)
• DCPS Office of General Counsel (DCPS LEA)
• Office of Attorney General attorneys (DCPS LEA)
• Charter school attorneys
• OSSE Placement Division
• OSSE’s Student Hearing Office and Hearing Officers
Children’s Law Center works to give every child in the District of Columbia
a solid foundation of family, health, and education. We are the largest provider
of free legal services in the District and the only to focus on children.
Our 80-person staff partners with local pro bono attorneys to serve
more than 2,000 at-risk children each year. We use this expertise to advocate
for changes in the District’s laws, policies and programs.
Visit www.childrenslawcenter.org to learn more.
What is Special Education?
Overview of Special Education Law
in the District of Columbia
Tracy L. Goodman, Director, Healthy Together
Kathy Zeisel, Senior Supervising Attorney
Pro Bono Special Education Training
June 2014
Legal Authority
• The Individuals with Disabilities Education Improvement Act
(IDEIA)
• Title 20 USC § 1400, et seq
• Federal Regulations
• 34 CFR Parts 300 and 301 (ages 3-21)
• 34 CFR Part 303 (ages 0-2)
• Local Regulations
• District of Columbia Municipal Regulations, Title 5
• OSSE Special Education Student Hearing Office Due Process
Hearing Standard Operating Procedures (SHO SOP)
• Policies by OSSE and DCPS
What is Special Education?
Specially
designed
instruction,
provided at no
cost to the
parent, that
meets the
unique needs
of a child with
a disability.
•Special Education Can Include:
•
•
•
•
•
Travel training
Vocational training
Specialized Academic Instruction
Related services
Classroom Accommodations and
Modifications
• See CFR §300.39
What is the IDEIA?
• The IDEIA is a federal statute that is meant to
ensure that all children with disabilities
receive a free and appropriate public
education (FAPE) in the least restrictive
environment (LRE)
• Children ages 0 to 22 are covered by the IDEIA
• Part C of the IDEIA covers children ages 0 through 2
• Part B of the IDEIA covers children ages 3 through 21
Important Terms to Remember
• Free and Appropriate Public Education (FAPE)
• Child Find
• Individualized Education Program (IEP)
• Least Restrictive Environment (LRE)
Free and Appropriate Public Education (FAPE)
• Special education and related services:
• Provided at no charge to the parent under public supervision and
direction;
• Meets the standards of the State Education Agency (OSSE);
• Designed to meet the individual needs of the child to ensure the child
makes educational progress;
• Are provided in conformity with the child’s Individualized Education
Program (IEP).
• See 20 USC §1401(9); 34 CFR §300.17
• A child’s educational progress cannot be trivial
or de minimus
Child Find
• DC must ensure that all children with disabilities residing in
the city and who are in need of special education and related
services are identified, located, and evaluated
• Applies regardless of the severity of the child’s disability
• Includes children who are:
•
•
•
•
Not attending school;
Homeless;
Wards of the District;
Attending Private Schools and Public Charter Schools
• See 20 USC §1412(a)(3); 34 CFR §300.111
Individualized Education Program (IEP)
“[Congress
envisioned] the
IEP as the
centerpiece of the
[IDEA]’s education
delivery system
for disabled
children.”
Honig v. Doe, 484
US 305 (1987)
• A written statement for each child with
a disability that is developed, reviewed,
and revised in accordance with the
IDEIA (20 USC §1414(d))
• The plan governing what a child in
special education should be receiving as
part of his/her education
• See 20 USC §1401(14); 34 CFR §300.22
Least Restrictive Environment (LRE)
• To the maximum extent appropriate, children with
disabilities are educated with children who do not
have disabilities in a regular education classroom;
and,
• Children with disabilities should attend their
neighborhood school unless that school does not
have the kind of program that can meet their special
needs
• See 20 USC §1412(a)(5); 34 CFR §300.114
Steps to Secure Special Education
1.
2.
3.
4.
5.
6.
7.
Referral
Evaluation
Eligibility Determination
IEP Development
Placement Determination
IEP Review
Re-Evaluation
Step 1: Referral
• In order to be evaluated for special education and
related services, a child with a suspected disability
must first be referred for evaluations
• A child must be referred by:
•
•
•
•
Parent
Employee of school system;
Adult child; or
Employee of another state agency (e.g. CFSA, DMH)
• See 20 USC §1414(a); 34 CFR §301(b)
How are Referrals Made?
• Referrals should be made in writing to the school system
or principal
• Referrals should include:
• Date of the referral;
• Simple statement of educational concerns of the child and why
you think child has a disability;
• Statement requesting evaluations and special education service;
and
• Signature and contact information of person making the referral.
• Referrals for children ages 0-3 should be made to OSSE
for Early Intervention
• Referrals for children ages 3-5 should be made to Early
Stages
What Happens Once a Referral is Made?
• The school must hold an MDT/IEP meeting after the referral is
made and before conducting evaluations
• At the meeting, the school should:
• Review current information and data about the child and any pre-referral
interventions;
• If further evaluations are needed, develop a Student Evaluation Plan
(SEP) detailing the reasons for the referral and the evaluations to be
conducted;
• Explain to the parent what evaluations are to be conducted; and
• Obtain informed consent from the parent of the child (See 20 USC §
1413(a)(1)(D); 34 CFR § 300.9)
MDT/IEP Team
•
MDT/IEP team must include:
•
•
•
•
The parent(s);
Special education teacher;
Individual who can interpret evaluation results;
Other persons at the discretion of parent or LEA, who have
knowledge or special expertise regarding the child;
• The child, if appropriate; and
• Representative of LEA who is:
• Knowledgeable about general curriculum of LEA;
• Knowledgeable about the availability of resources of LEA; and
• Qualified to provide or supervise the provision of special
education
• See 34 CFR §300.321
Step 2: Evaluation
• The LEA is responsible for conducting a
comprehensive and individualized evaluation to
determine:
• Whether a child is a child with a disability, and
• The educational needs of the child
• See, 20 USC §1414(b); 34 CFR §300.304
• DC Code allows the school 120 days to complete
initial evaluations
• Trumps IDEIA, which provides for 60 days in the absence of
state rules to the contrary
Common Types of Evaluations
•
•
•
•
•
•
•
•
•
•
•
Psycho-educational Evaluation
Clinical Psychological Evaluation
Comprehensive Psychological Evaluation
Neuropsychological Evaluation
Psychiatric Evaluation
Speech and Language Evaluation
Occupational Therapy Evaluation
Physical Therapy Evaluation
Assistive Technology Evaluation
Social Work History
Functional Behavioral Assessment
Step 3: Eligibility Determination
• Once all evaluations are completed, the school must
convene another MDT/IEP meeting
• Meeting is to review the evaluations
• Meeting must include someone who can interpret
evaluation data
• The MDT/IEP team must determine if the child:
• Is a child with a disability as defined in the IDEIA; and
• If that disability impacts the child in the school setting such
that they require specialized instruction and related services
• See 20 USC §1414(b)(4); 34 CFR §300.306
Eligibility Determination
• When making this determination, the MDT/IEP team
must review the evaluations and other relevant
information, such as:
•
•
•
•
•
Existing evaluations provided by the parent;
Information provided by the parent;
Assessments conducted in the classroom;
State and local assessments of the child; and
Observations of teachers and related service providers
• See 20 USC §1414(c)(1)
Disabilities Under the IDEIA
•
•
•
•
•
•
Learning Disability
Emotional Disturbance
Mental Retardation
Speech and/or Language
Impairment
Other Health Impairment
(includes ADHD, HIV/AIDS,
etc.)
Autism
•
•
•
•
•
•
•
•
Deaf-Blindness
Deafness
Developmental Delay
Hearing Impairment
Multiple Disabilities
Orthopedic Impairment
Visual Impairment
(Including Blindness)
Traumatic Brain Injury
What if a Parent Disagrees?
• The parent has a right to request an Independent Educational
Evaluation (IEE) to be paid for by the LEA
•
•
Parent only need express their disagreement with the LEA’s evaluation and
request funding for an independent one
The LEA may request additional information on the disagreement
• After a request for an IEE, the LEA has two choices
• Provide funding authorization for an IEE without unnecessary delay
• File a due process complaint against the parent to prove the
appropriateness of their evaluation
• 34 CFR §300.502
• As with any disagreement throughout the special education process,
the Parent may also request mediation or a due process complaint.
Step 4: Development of an IEP
• The IEP is developed by the MDT/IEP team
• The IEP must include:
• The child’s present level of performance;
• Information on how the child’s disability affects his/her involvement and
progress in a general education setting;
• Measurable annual goals and objectives;
• Levels and types of special education, related services, supplementary
aids/services and program modifications;
• An explanation of the extent to which the child will not participate with
nondisabled children in the regular class; and
• Any accommodations required in the classroom and for standardized
testing
• See 20 USC §1414(d)
Related Services Can Include:
•
•
•
•
•
•
•
Speech and Language Therapy
Occupational Therapy
Physical Therapy
Counseling Services/Behavioral Support Services
Transportation Services
Parent Counseling and Training
Medical Services
• See 34 CFR §300.34
Accommodations/Modifications and
Supplementary Aids and Services:
•
•
•
•
•
•
•
•
•
Dedicated Aide;
Use of Word Processor;
Special Seating;
Adaptive Furniture;
Extra Time for Tests;
Breaks during Testing or Class;
Testing at Best Time of the Day for the Student;
Specified Form for Directions (Repeated, Written, Oral); and
Use of Calculator
• See 34 CFR §300.42
Other Important IEP Components
• Transportation
• Extended School Year (ESY)
• Behavior Intervention Plan (BIP) (See 34 CFR § 300.324(a)(2)(i))
• Functional Behavior Assessment (FBA) should be done first
• Transition Plan (See 34 CFR § 300.43)
• Required for child aged 16 or older
• Should be developed after a vocational evaluation
• Includes a transition services plan and age-appropriate goals
relating to:
•
•
•
•
Training;
Education;
Employment; and
Independent Living Skills, if appropriate
Step 5: Placement
•
Meeting convened with the IEP/MDT team
•
Can be separated from or folded into an IEP meeting
• Placement is based on the individual needs of the child, and must
consider:
•
•
The IEP; and
LRE requirements
• Placement is made by a group of people, including:
•
•
The parent, and
Other persons knowledgeable about the child, the meaning of the evaluation
data, and placement options
• Placement must be determined at least annually
• Placement must be as close as possible to the child’s home
•
See 34 CFR §300.116; 20 USC §1414(e)
Continuum of Placements
• Instruction in General Education Classes
•
Inclusion/Push-in Services by special education provider
• Instruction in Special Classes
•
•
Pull out classes in academic subjects or for related services
Ranges from one or two classes to the bulk of a child’s school day
• Special Schools
•
•
•
Educational placement where a child spends all day in a special education
setting with special education peers.
No contact with regular education peers during the day
Can be a public school or a non-public school
• Home Instruction
• Instruction in Hospitals and Institutions
•
•
Residential programs are for kids unable to function in the community
Children with disabilities in residential programs must be able to access their
specialized instruction
• See, CFR §300.38 and § 300.115
Step 6: IEP Review
• IEPs must be reviewed and revised as necessary, but
at least once a year
• A parent or school can request an IEP meeting at
anytime if there is concern about the provision of
FAPE to the child
• For example:
• Child is regressing in academic or behavioral areas
• Child has begun to act out
• Child has made excellent progress and goals need to be
adjusted
• See 20 USC §1414(d)(4)
Step 7: Re-Evaluation
• A child who receives special education services must be reevaluated in all areas of suspected disability every 3 years
unless all members of the team agree that it is not necessary
• A school may not unilaterally make the decision not to evaluate
• Team’s decision not to evaluate should be documented
• A child can be re-evaluated more frequently at the request of
the parent or teacher
• See 20 USC §1414(a)(2); 34 CFR §300.303(b)(2)
Procedural Requirements for the Provision of FAPE
• The LEA must provide parents:
1. A copy of the Procedural Safeguards
2. The opportunity to review their child’s educational records;
3. The opportunity to meaningfully participate in IEP
development and placement decisions;
4. The opportunity to obtain an independent educational
evaluation;
5. Prior Written Notice when proposing or refusing to initiate
or change the provision of FAPE to the child;
6. The opportunity for mediation; and
7. The opportunity to file a Complaint
• “Stay-put” rights until the complaint is resolved
Prior Written Notice (PWN) Must Include:
• A description of the action proposed or refused by the agency;
• An explanation of why the LEA proposes or refuses to take the
action;
• A description of each evaluation procedure, record, or report
used as a basis for the action;
• A description of other options considered by the IEP team and
the reason why those options were rejected; and
• A description of the factors that are relevant to the LEA’s
proposal or refusal
• See 20 USC §1415(c)
Troubleshooting Denial of FAPE
Procedural Issues
•
•
•
•
•
•
Timeline Violations
Notice to parents
Parent Involvement
IEP team participants
IEP implementation
Timely Evaluations
Substantive Issues
•
•
•
•
•
Meaningful Progress
IEP Implementation
Appropriate instruction
LRE
Appropriate
educational placement
• Appropriate teachers
and therapists
A Procedural Violation = Denial of FAPE When:
• It impedes the child’s right to a FAPE;
• It significantly impedes the parent’s opportunity to
participate in the decision-making process regarding
the provision of a FAPE to the child; or
• It caused a deprivation of education benefits to the
child  HARM
• See 20 USC § 1415(f)(3)(E)(ii)
Suspensions and Expulsions
• Students with disabilities have special protections in
disciplinary matters
• A student with a disability is always entitled to a FAPE and can
never be excluded from receiving an education
• These protections cover children with disabilities who have
not yet been found eligible for special education if:
• The school system knew or should have known that the child is a child
with a disability
• See, 34 CFR §300.534
Extra Protections for Students with Disabilities
• Excluding a child with disabilities from class for more than 10 school
days is a change in placement.
•
•
Therefore, the school must hold a meeting to determine whether the behavior
is a manifestation of the student’s disability
This meeting must take place whether it’s been 10 consecutive days or 10 days
throughout one school year
• If it is a manifestation, and/or is a result of the school’s failure to
provide appropriate services or implement the child’s IEP, then the
suspension/exclusion cannot take place
What is a Manifestation Determination?
• A meeting of the child’s IEP team to determine if the behavior that lead
to the disciplinary action is substantially related to the child’s disability
• The IEP team must convene within 10 school days to determine if:
(i) If the conduct in question was caused by, or had a direct and substantial relationship to, the
child's disability;
•
This is NOT whether the child knows right from wrong
or,
(ii) If the conduct in question was the direct result of the LEA's failure to implement the IEP.
(iii) DCPS also considers if the IEP was appropriate
•
The Team must review and consider all relevant info, including:
• Evaluations
• Observations of the child
• Information provided by the parent
• Current IEP and placement
See, 34CFR §300.530
Manifestation Determination: Results
• If the team answers “yes” to any of those questions, the
behavior is deemed to be a manifestation of the child’s
disability and the disciplinary action must be rescinded.
• There is an exception for incidents where the child had a
dangerous weapon or drugs.
• In addition, the school must:
 Conduct an FBA and create/implement a BIP
 Review a BIP already in existence and modify it as necessary
 Permit the child to return to their previous placement, unless team
agrees there should be a change in placement
34 CFR §§300.530 through 300.536
20 U.S.C. 1415(k)(1) and (7)
And if a Parent Disagrees?
• Expedited Due Process Hearing is always available
• DCPS Students
• DCMR regulations apply to DCPS students (not DCPS-LEA
charter school students) (DCMR Title 5, Chapter 25)
• Disciplinary hearings available for suspensions over 10 days
• Other types of advocacy may be possible
• Charter School Students (even DCPS)
• No DCMR regulations exist for charters but they do have to
follow the IDEIA disciplinary provisions
• Charters set their own disciplinary policies, and many do not
have clear policies
• Limited appeals may be possible
Children’s Law Center works to give every child in the District of Columbia
a solid foundation of family, health, and education. We are the largest provider
of free legal services in the District and the only to focus on children.
Our 80-person staff partners with local pro bono attorneys to serve
more than 2,000 at-risk children each year. We use this expertise to advocate
for changes in the District’s laws, policies and programs.
Visit www.childrenslawcenter.org to learn more.
Case Realities
Representation Implications and
Strategies You Can Use
Tracy L. Goodman, Director, Healthy Together
Kathy Zeisel, Senior Supervising Attorney
Pro Bono Special Education Training
June 2014
Representing Parents
• It is not personal
• Don’t be surprised at a parent’s
passion/anger/frustration
Housing
Education
Violence
• Don’t be surprised if it
becomes personal to you
•
You may develop your own
emotional investment and
response
Immigration
Finances
Family
• Often, your case is just one of
many issues facing your client
•
•
Low-income parents in DC
often have overlapping issues
Each issue can impact
representation
Health
Insurance
Disability
Child Care
Food
Other Issues that May Be Impacting Clients
2014 POVERTY GUIDELINES
FOR THE 48 CONTIGUOUS
STATESAND THE DISTRICT
OF COLUMBIA
Persons in
Poverty guideline
family/household
For families/households with more
than 8 persons, add $4,020 for each
additional person.
1
2
3
4
5
6
7
$11,670
15,730
19,790
23,850
27,910
31,970
36,030
8
40,090
• Income
• Your client may work
• BUT many wage jobs do not allow time off
to attend meetings, answer calls, etc.
• Even very low wage employment cuts
families off from much state assistance,
adding financial pressures on the family
• Your client may not work
• May have young or needy children requiring
their full attention
• May have a disability of their own
• Public Benefits
•
•
•
Certification and recertification processes can be
arduous
Do not cover the cost of raising and feeding a family
Housing is often unsafe, unsanitary, and unstable
Other Issues that May Be Impacting Clients
• Education
• Your client may not:
• Have graduated from high school
• Have basic literacy skills
• Have been provided the information they need to
advocate for their children
• Other Stressors
• Your client may:
• Have responsibilities for extended family members,
neighbors, etc.
• Have to rely on public transportation
• Not to be safe in his or her home or neighborhood
Implications: Client Interactions
• Barriers to communication via phone or face to face:
•
•
•
•
•
Inflexible job
Transportation Costs
Time commitment for using public transportation
Caring for an infant or other relative
Cost of cell phone minutes
• Client may come to you frustrated and confused
• Frustrated with the school, and sometimes the child him or
herself
• May not understand everything that is happening to his/her
child or how to fix it
• May be overwhelmed by other stressors
Implications: Communication
• Make sure your client knows how to contact you
• Send a letter with your name, address, phone number, and
e-mail
• Find out all possible ways to contact your client
• Some client’s contact information may change during
representation, make sure your client knows to keep you up
to date
• At the end of the month, client’s cell phones may be shut
off—try again at the beginning of the month
• Ask for the phone number of a friend, family member, or
other person who can be a back-up contact
Implications: Communication
• In written and spoken correspondence, always use
regular language your client can access and
understand
• Check in consistently (e.g. “did I explain that okay?”)
• Thoroughly explain verbally anything you send to
your client in writing
• Try to keep written communication at an eighth
grade level
• Many programs allow you to check literacy levels
• Discuss how you and your client will stay in regular
communication early in your representation
Counseling your Client
• Clients will need legal counseling throughout the life of a
case
• Touch-backs on rights and responsibilities of everyone involved
• You should discuss who will interact with the school
• The parent has been the primary contact for everything at the
school---so, be clear when you want to be the one contacting the
school.
• Discuss what information they should report to you
• If the child is suspended
• If the parent receives a grade report, a progress report, etc.
• If the parent receives a phone call or letter requesting a meeting
or information on the child
• Etc.
Counseling your Client
• One of your jobs is to ensure that your client
understands:
•
•
•
•
•
•
Their child’s disability
The school’s legal obligations
Their rights and their child’s rights
Where the school/district has violated the law
Options for the child as possible remedies
How they can best advocate for their child in within the lawyerclient relationship
• For example: when the parent should respond to a school’s
action v. when a legal response is better
• As representation winds to a close, how the parent can ensure
their child’s needs are met when they no longer have a lawyer
If Your Client Temporarily Disappears
• Don’t Get Frustrated
• There may be a good reason
• It is likely not an indication that they don’t
want/need your help
•Go through your contact list
•Send a request for contact letter
•After contact is re-established:
•Debrief with your client and make a plan for
maintaining contact going forward
Children’s Law Center works to give every child in the District of Columbia
a solid foundation of family, health, and education. We are the largest provider
of free legal services in the District and the only to focus on children.
Our 80-person staff partners with local pro bono attorneys to serve
more than 2,000 at-risk children each year. We use this expertise to advocate
for changes in the District’s laws, policies and programs.
Visit www.childrenslawcenter.org to learn more.
Handling a Special
Education Case
From First Contact Through Advocacy
Development
Tracy L. Goodman, Director, Healthy Together
Kathy Zeisel, Senior Supervising Attorney
Pro Bono Special Education Training
June 2014
First Steps
When you take a
special education
case from
Children’s Law
Center, you will
receive all the
information and
every document
we were able to
gather during our
intake process.
1. Contact the client as soon as possible
to schedule initial meeting
• Ask them to update you on anything that
happens with the school, including if the
school wants to schedule a meeting
• Consider transportation and logistical
challenges for the client
• Consider whether client needs funds to get
to your office
2. Initial Meeting: Preparation and
Content
Initial Client Meeting: Preparation
• Before interview:
• create a chronology based on the documents you
have
• brainstorm questions for client from intake and
records
•
•
•
•
•
•
•
•
•
Client’s concerns about the child
Background on child’s disabilities
Child’s school history
Special education background
Information about child at home
Parent’s efforts to obtain help
History of parent’s contact with DCPS/school system
Parent’s goal(s)
Any meetings coming up for child?
Initial Client Meeting: The Basics
• Sign retainer and release in the initial meeting
• Review and sign the retainer
• Get client to sign a release of information
• You will want to explain what it means to work with a lawyer
•
•
•
•
Confidentiality
The relationship (e.g. the client is the “boss”)
Long and short term goals
Importance of staying in contact
• Use simple language—don’t use legalese or abbreviations!
• Discuss who will communicate with the school about requests
for meetings, evaluations etc.
Initial Client Meeting:
Understanding the Child’s Disability
• Confirm your understanding of the disability and how it impacts the child
with the parent
• Ask about how the child behaves at home and at school
• Ask about the child’s ability to do age-appropriate tasks (such as
following multi-step directions, completing homework independently,
play with other children)
•
What information does the parent have from the school?
• Formal documentation
• Informal documentation or conversations with school staff
• Classwork/Homework examples
•
Are there any out-of-school activities or interventions in place? Does your
client need referrals to any?
• Mental health services
• Mentoring
• Tutoring
• Sports
Initial Client Meeting:
Child’s School History
• For each school year:
• School and Teacher names
• Progress/difficulties each year
• Grades, standardized test scores, homework,
• Teachers’ comments,
• Developmental progress, etc.
• Grades retained and/or deficiency notices
• Disciplinary issues
• Evaluations conducted
• Meetings held
• School-based interventions provided
• Special education
• IEPs? Services? Disability classification?
• Where services were provided?
• Non-special education
• What kind?
• Where provided and by whom?
Initial Client Meeting:
Client’s Efforts to Obtain Help
• Did client express concerns?
• To Whom? (teacher, principal, counselor, outside agency, government
agency, doctor, etc.)
• When?
• How? (e.g. in writing or verbally)
• Was there a response to client’s outreach?
• What kind of response?
• Who responded?
• Client History with School/District
• Notices received by parent
• Due process complaints filed by parent
• Outcomes from complaints?
Initial Client Meeting: Client’s Goal(s)
• A client may not be able to articulate a definitive goal
at first
• Find out parent’s ideal school situation for the child
• From that description, you can work backward to formulate
goals
• Summarize goal(s) back to parent to ensure you
understand
• Discuss possible options
• Discuss next steps
Next Steps
Now that you have
a clearer picture
of the child and
the child’s
educational,
medical, and
social history, it is
time to plot your
advocacy strategy
forward.
• Identify areas that may need
follow up
• Client questions
• Questions for outside providers
• Documents
• Identify Legal Issues and Goals
• Identify an advocacy strategy for
the case
Identifying Legal Issues
• Go with your gut
• If something feels wrong, chances are, it is
• Look for the big issues
• Timelines
• Evaluations
• Did they happen?
• Were they complete?
• Does parent agree w/the results?
• IEP
• Appropriate?
• Is it being implemented?
• Progress
• Check report cards, evaluations, testing, IEP goals and objectives
• Are there discrepancies?
Hone in on Specifics
• Procedural issues
• Were all statutorily mandated members of the IEP
team present?
• Was the parent present? Did the school make a
good faith effort to accommodate the parent’s
schedule?
• Were all statutorily mandated portions of the IEP
filled out?
• How did IEP goals change (or not) from year to
year?
Deciding on an Advocacy Strategy
• Adversarial vs. Collaborative approaches
• Much of the work will be informal advocacy, even if you are
going to litigation
• Why Collaborative?
• Client may want child to continue at the school
• School may be cooperating and some other entity (ie: DCPS
central office) is the main issue
• School may give you more information
• Why Adversarial?
• Headed directly into litigation
• School has completely alienated your client
• You need to go straight to “litigator” mode
Common First Steps:
Requesting Records
•
•
•
You may want to immediately request records or you may want to wait to
put the school on notice of your involvement
You should request to inspect and copy the records at the school’s expense
or to have the school send a copy to you.
Generally information is found in:
•
School records
• Current and former schools
• Early education/Day care facilities
• Cumulative school record
• Report cards, teacher notes, deficiency notices, testing scores
• IEPs, IEP progress reports, encounter tracking forms, evaluations
• Attendance records, suspension notices or other disciplinary
documentation
•
Medical records (though this can take a long time to get and may not be
necessary for all cases)
• Hospital, primary care physician, outside providers
• In-patient care provider
• Mental health providers (may need release signed by the child)
Common First Steps:
Requesting an IEP Meeting
• Requesting an IEP meeting is a typical first
step for either an adversarial or collaborative
case
• How to request the meeting:
• In writing to the special education
coordinator or director of special education
• Via email (with read receipt) or fax (with fax
confirmation sheet)
• Hearsay is admissible in our cases, so your
emails/letters can be introduced as evidence.
But you should be able to prove they were
received.
Common First Steps:
Preparing for a School Meeting
• Identify your main goals of the meeting
• Make a checklist of the key things you want to
discuss during the meeting (treat this as a discovery
opportunity)
• Any records you want?
• Questions for a particular teacher?
• Questions about the child’s schedule? When they are receiving
services?
• Questions about particular behavioral interventions?
• Updates to the IEP? Behavior Intervention Plan? Transportation?
• Do you want any evaluations conducted?
• Discuss how you will communicate with your client
and who will speak during the meeting
Common First Steps:
General Tips for School Meeting
• You are creating a “record” but there is no
recording and usually no notes by the school.
•
•
•
You can tape record if you want.
If you are going to litigation, you may want a
paralegal/third party present.
Follow up in writing (again, hearsay is admissible
and you put the school on notice).
Common First Steps:
Requesting an IEP Meeting
• How much do you want to put in the letter? It
depends on your strategy! Options include:
• Just ask for a meeting for a narrow purpose (to review an evaluation,
to discuss behavioral supports, to discuss bullying)
• Ask for a meeting to review the entire IEP and/or all academic
progress
• Request that specific people attend the meeting (beyond the basic IEP
team)
• Include all concerns to put the school on notice
• Request an IEE’s as part of your initial letter
• Request specific documents as part of your initial letter
• Scheduling the meeting:
• Must be scheduled at a mutually convenient time
• Realistically, some staff may be available only on certain days
• There are summer IEP teams that can meet while school is in session
What happens at an IEP meeting in an
eligibility case?
1.
First meeting: Student Evaluation Plan and Consent to Evaluate
•
•
2.
The team must agree which evaluations are needed
The parent must provide written consent
Second Meeting: The team must meet within 120 days to review the
evaluations and determine eligibility
•
•
•
Evaluators will review evaluations and give the opportunity to ask questions
Team will determine if the child qualifies for special education
If the team determines:
•
•
•
3.
The child qualifies for special education, then they will create an IEP
The child has a disability, but would be better served by a 504 plan—refer to 504
team
The child is not eligible for either, then the parent can object and/or request IEEs
Second or Third Meeting: Creation of the IEP
•
•
•
Ensure that there are adequate services in the appropriate setting
Ensure that appropriate modifications are in place
Discuss placement
What happens at an IEP meeting in an
IEE case?
1. First Meeting: Request IEE
•
•
•
This may be accomplished in writing with the school without a meeting
If the school does not respond to your request, you will want to contact
DCPS Central Office
Once you have the authorization, we can make referrals for evaluators
2. Provide IEE to the school
•
Be sure to document when you gave it to the school
3. IEE Review Meeting
•
•
•
•
IEE evaluator typically does not attend the meetings
School will need time to review the evaluations prior to the
meeting
DCPS will require that their staff write a summary and determine
if DCPS accepts or rejects the IEE
This meeting may be very positive with the school or you may be
setting up for litigation
What happens at an IEP Meeting to improve the IEP?
• IEP meetings are run differently at every school
• But, the general course of most is:
1. Introductions and review of the purpose of the meeting
• Feel free to add to the purpose of the meeting
2. Review of how the child is doing by teachers/service
providers
3. Review of Evaluations (if relevant)
4. Discussion of issues raised by parent or school
• Attendance
• Grades/credits
• Specific issues with the IEP
What Happens at an IEP meeting for placement?
• Very dependent on what type of school
• But, the general course of most is:
1. Introductions and review of the purpose of the
meeting
• Feel free to add to the purpose of the meeting
2. Review of how the child is doing by teachers/service
providers
3. Discussion of type of placement needed
•
•
School may agree more restrictive placement is needed
School may disagree—then you will need to start building
your case
Post-Meeting Strategy
• After the meeting, debrief with your client
• Discuss what was gained and what remains
outstanding
• Revise advocacy strategy based on
information/action at meeting
• Determine if additional non-litigation advocacy is
needed to support ultimate goal
• Meeting notes addendum
• Follow-up meeting
DCPS Observation and Visitor Policy
• DCPS Observation and Visitor Policy
• New Policy as of 2013 for DCPS schools only.
• Significantly restricts access to observe a
child.
• Creates barriers even for permitted observers
• may only observe for a limited time,
• must sign a confidentiality agreement,
• must provide notes
• Not being implemented by all schools.
DCPS Observation and Visitor Policy
• Observation and Visitor Policy, places significant restrictions
on who may observe a child at school.
CLC Recommendations:
• If your expert or evaluator is presented with the policy
please have them:
1.
2.
3.
Sign their name at the bottom and write underneath their
signature, “my signature on this agreement is subject to the
attached addendum.”
Sign the addendum and date it
Make sure to get copies of the two documents together (the
school will keep the originals, but ask for a copy for their files).
• Please notify us if your expert is presented with the policy
DCPS Observation and Visitor Policy
Text of the CLC-recommended addendum:
I am conducting an independent educational evaluation of [CHILD’S FULL NAME] to
assist with the provision of special education services under the Individuals with
Disabilities Education Improvement Act (IDEIA). I understand that the attached
Confidentiality Agreement is not intended to interfere with the rights afforded by the
IDEIA to children with disabilities or their parents.
To the extent required under the IDEIA, as soon as possible upon completion of my
observation and report, I agree to provide said report of any recommendations or
observations I made regarding the above-referenced student and the student’s
classroom/school environment to the District of Columbia Public Schools.
_____________________________
NAME
____________________
Date
Placement in a DCPS LEA Case
• If the team agrees that a more restrictive placement is
needed, DCPS’ LRE team will be called in.
• Often, the LRE team will meet without the parent or any
members of the IEP team
• If the team agrees that a new location of services is
needed, DCPS’ placement team will be called in.
• Again, this team does not often meet with the IEP team or the
parent
• The parent can accept the proposed placement or can
litigate for a different placement.
• We do not think this is a legal process and we recommend
that you create a record of disagreement with this
process.
Placement in a LEA Charter Case
• If team agrees that a more restrictive placement is needed
AND the Charter can not provide it, the team will do a
referral to OSSE.
• OSSE’s placement team will meet with the school and
with the IEP team
• OSSE will issue a state recommendation
• OSSE will issue a location of services letter within ten days of
the IEP meeting with OSSE
• This is a big advocacy opportunity to drive the school
selection.
Other Advocacy Strategies to Consider:
DCPS Cases
1. Contact DCPS central office
•
Most helpful for issues around IEEs or compensatory
education
• Case compliance officer for the school (public schools)
• LEA progress monitor for the school (non-publics)
• Carla Watson, Director of Compliance and Resolution
2. Contact the Instructional Superintendent
• Most helpful for issues around discipline, bullying or
transfers between DCPS schools
3. Contact the central office 504 Specialist
•
Colin Bishop
Children’s Law Center works to give every child in the District of Columbia
a solid foundation of family, health, and education. We are the largest provider
of free legal services in the District and the only to focus on children.
Our 80-person staff partners with local pro bono attorneys to serve
more than 2,000 at-risk children each year. We use this expertise to advocate
for changes in the District’s laws, policies and programs.
Visit www.childrenslawcenter.org to learn more.
The Due Process Hearing:
Overview of the Process, Practice
Tips, and Litigation Skills
Tracy L. Goodman, Director, Healthy Together
Kathy Zeisel, Senior Supervising Attorney
Pro Bono Special Education Training
June 2014
Due Process Hearings
Due Process
hearings play out
over a very short
timeline – just 75
days from the day
you file to the day
you receive a
hearing officer
decision.
• Special education cases are litigated
administratively
• The “trial” is called a due process hearing
•Independent Hearing Officers are
contracted to hear Petitioner claims
• In DC Hearing Officers contract with, but do
not work for, OSSE
• In DC Hearing Officers directly control other
aspects of case management
•Scheduling
•Continuances of 10 business days or less
•Admittance of evidence, hearing
management, motions
•Remedy
Timeline for Due Process Hearings
• Day 1
• File Complaint
• Day 10 (calendar days)
• Receive an answer from Respondent
• Day 15 (calendar days)
• Deadline for resolution session (can be waived by the parties)
• Day 30 (calendar days)
• End of Resolution Time Period (can be waived by the parties)
• 45 Calendar Days after the Resolution Period Ends
• Hearing must be held and final Hearing Officer Decision (HOD) issued
• Disclosures are due 5 Business Days prior to the hearing itself
• Total: Can be up to 75 Calendar Days from Date of Filing
Expedited Due Process Hearings
• When Can a Hearing be Expedited?
• Automatic application when the complaint concerns certain discipline
matters.
• At the discretion of the hearing officer if the physical/emotional health
or safety of the student or others is in danger; or
• At the discretion of the hearing officer if there is other substantial
justification
• What is the Expedited Hearing Timeline?
• Day 1: File Complaint and Motion for Expedited Hearing
• Hearing officer will rule on motion within 5 days if not automatic
• Day 7 (calendar days): Resolution Meeting
• Day 10 (calendar days) : DCPS Response Due
• Within 20 School Days of filing: Hearing must be held
• 3 Business Days before hearing: Disclosures Due
• Decision must be issued within 10 School Days of hearing
Using Experts
• Types of experts:
•
•
•
•
•
Psychologists (often evaluators)
Educational consultants
Speech-language, occupational therapy or physical therapy experts
Psychiatrists
Counselors
• Why retain an expert?
•
•
•
•
Parent has burden of proof
Expert opinion is sometimes necessary to prove issues raised in your case
Experts can help in understanding child’s needs
Discussion of appropriateness of proposed remedy
• When to retain an expert?
•
•
Before you file
Shortly after filing
Costs of Experts
• Expert costs are variable
• Expectation is that Firm will pay cost of experts
• Cost Example: Educational Experts
• Often retained to an independent evaluation of educational need
• From $5000-$10,000 for investigation and hearing.
• Evaluators:
• Independent Educational Evaluations (IEEs) authorized by the LEA are
paid by the LEA at pre-determined rates
• Firm may pay cost of evaluation if no IEE or if IEE rates do not cover cost
of preferred evaluator
• Evaluators will typically charge an additional fee to testify, if needed
• Hourly fees for testimony range widely
Rules Governing the DP Hearing
• A variety of sources discuss the due process hearing
rights and considerations
• You can find those sources here:
•
•
•
•
•
20 USCA § 1415 et seq (IDEIA)
34 CFR § 300.500 et seq (IDEIA Regulations)
DC Code §38-2561.02 (on LRE only)
5 DCMR Chapter 30 et seq.
OSSE Student Hearing Office Standard Operating Procedures
(SOP)
• Multiple updates to the SOP
• Updates are listed in separate documents and have not
been incorporated by OSSE
Filing a Complaint
• Who can file?
Although LEAs have
the right to file
against parents, and
in some cases are
legally required to
do so, in DC, LEAs
rarely move forward
against a parent.
• Parents can file a complaint regarding any
matter relating to the provision of a free
and appropriate public education
• LEA can also bring a complaint against the
parent in certain circumstances
• Parent refuses to consent for initial
evaluation or re-evaluation
• Parent has requested an IEE and the
school wants to defend its own
evaluation
• Child over 18 who has educational rights
can file on his/her own behalf
Statute of Limitations
• Alleged violations must have occurred not more than 2 years before
the date the filing party knew or should have known about the
alleged action forming the basis for the complaint
• Exceptions:
•
•
•
Statutory (20 USC § 1415(f)(3)(D))
• LEA’s specific misrepresentation that they had solved the issue underlying
the complaint
• LEA’s withholding information from parent required under the IDEIA
Continuing Violation Doctrine (case law)
• Recent case law raises question of the applicability of continuing violation
to IDEIA cases
• Is still be applicable in limited circumstances (e.g. ongoing timeline
violations)
Equitable Tolling Doctrine (case law)
Contents of the Complaint
• Must be filed in conformity with 20 USC 1415(b)(7)(A)
• Should always include:
• Name, address, and school of child, as well as
schools/LEAs/SEA against whom the complaint is brought
• Description of the problem, including supporting facts
• Legal issues presented
• Proposed resolution to the problem to the extent known to
the party at the time
• Whether you want mediation and/or resolution session
• Estimated time necessary for the hearing
• Any accommodations for the parent
• Signature of the parent or representative
Complaint: Laying out the Facts
•
•
•
•
•
Describes the child using concrete examples
Gives an overview of relevant school history
Can cite to evaluations to describe the child’s needs
Includes compelling facts
BUT Always Think Strategically
• You don’t need to disclose all your facts
• The complaint is shared with opposing counsel and
opposing witnesses
• Sometimes, too much detail can harm a case
Complaint: Legal Issues
• Always highlight the overall issue of denial of FAPE
• Also cite to specific violations of legal rights and
responsibilities
• For example:
•
•
•
•
•
Child Find
Failure to timely or fully evaluate
Failure to develop or implement an appropriate IEP
Failure to provide an appropriate placement
Failure to provide parent with prior notice or an opportunity for
meaningful participation
• Failure to properly/timely hold meetings
• All legal violations must be tied to harm to the child
Complaint: Proposed Remedy
• Includes the remedy to the extent known based on
information available to the filing party when the complaint is
filed
• Can request anything necessary to ensure the provision of
FAPE
• If unsure of exact remedy at time of filing, use language broad
enough to allow you to narrow things down
• Examples:
•
•
•
•
•
Child identified as a child with a disability under IDEIA
Addition of services to IEP
Order for LEA to fund evaluations
Order for LEA to fund and transport child to new placement
Compensatory education
Compensatory Education
• Compensatory Education (Comp Ed) is the term for the remedy for
past denial(s) of FAPE
• In DC, compensatory education must place the child where s/he
would have been but for the LEA’s failure to provide FAPE
•
Cannot be an hour for hour plan unless there is proof that the plan is
specifically crafted for the child’s needs
• Key case: Reid v DC, 401 F.3d 516 (2005)
• Comp Ed can include anything the child needs, including:
•
•
•
•
•
•
Tutoring
Speech and language/physical therapy/occupational therapy services
Mental health services
Transition services
Mentoring
Technology and software
Compensatory Education
• For the time period in question:
Consider some
key questions to
ensure your case
in chief supports
a compensatory
education award
•
•
•
What should the IEP have looked like?
What level of services should have been in place?
What should the placement have offered?
• Had everything been appropriate, where
would the child be:
•
•
•
Academically,
Socially and emotionally, and/or
Functionally
• What does the child need to be put in the
place they would have been, but for the
denial of FAPE?
•
•
What evidence do you have to support your
claim?
Is their precedent that supports a novel comp ed
request?
Sufficiency of the Complaint
• In absence of notice of insufficiency from Respondent, the
complaint is deemed sufficient
• The law does not contemplate hearing officers making insufficiency
claims sua sponte
• However, hearing officers have wide latitude on managing cases before
them
• Notice of insufficiency must be filed by the Respondent within
15 days of the due process complaint’s filing
• Within 5 days of receiving notice of insufficiency, the Hearing
Officer must decide the issue and complete a written order
• If Petitioner wants to respond to the notice before a ruling, do so
quickly
Response to the Complaint
• If proper Prior Written Notice that addresses all the
issues raised in the complaint has been issued previously,
no response in necessary. (34 CFR § 300.508(e)(1))
• In all other cases, Respondent must file a response within
10 days of receiving the complaint
• A Response should include:
• Explanation of why the LEA proposed or refused to take the
action
• Other options considered and why they were rejected
• Each evaluation, procedure, assessment, record, or report used as
a basis
• Other factors relevant to the proposal/refusal
Amending the Complaint
• Due Process Complaints can be amended
• Due process hearing timeline re-commences at the time the
amended complaint is filed
• Depending on the date of amendment, this can significantly postpone
your hearing date and relief
• DCPS may argue you are required to amend your complaint if raising any
new facts during pre-hearing matters
• May amend only if:
• The other party consents in writing and is given the opportunity to
resolve the complaint at a resolution session; OR
• Hearing officer grants permission no later than 5 days before the due
process hearing
• Other party can consent to waive the timeline starting over
Motions
• You can file motions pursuant to the SOP
• The SOP does not specify what motions can be filed
• Examples of motions:
•
•
•
•
•
Motion for default
Motion for summary judgment
Motion to admit facts not in evidence
Motion requesting a Notice to Appear (to compel a witness)
FRCP Rule 8(d) – all arguments not specifically denied are
averred
• Directed Verdict/Verdict on Partial Findings
Dispute Resolution Sessions
• What
•
•
An opportunity to meet with LEA to try and resolve the complaint
DCPS calls them “Resolution Meeting Sessions” (RMS)
• When
•
•
Must be convened within 15 days of receiving the parent’s complaint
Not mandatory if both parties waive it in writing or agree to mediation
• Who
•
•
•
•
The parent
IEP team members with “specific knowledge” of the facts in the complaint
Someone from the LEA with authority to settle the complaint
No LEA attorney unless the parent brings his/her attorney
• Remember  A DRS is not part of official settlement discussions
and is not confidential absent agreement of the parties!
Realities of Resolution Sessions
• If resolution is not reached:
• If parties agree that no resolution is possible, the hearing officer is
alerted and the 45 day hearing timeline begins
• If one party believes that a resolution can be reached, there is an
additional 15 days to do so
• Typically, a form is signed by the parties and sent to the HO, but you can
email the HO if you do not have a copy of the form
• If resolution is reached:
•
•
•
•
Signed by Parent and LEA representative with authority
Agreement may be voided within 3 business days of signing
DCPS has been offering settlement agreements to codify resolution
Some sections of the boilerplate settlement agreement language can be
problematic
Mediation
• Voluntary: parents and LEA must agree to participate
• Available prior to or after filing the complaint
• Mediation will occur before the hearing and will not impair
the parent’s right to go to hearing if mediation fails
• If the mediation goes beyond the 30-day resolution period,
it can toll the start of the 45 day litigation period
• All discussions are confidential regardless of the
results
• If resolved, parent and LEA must sign an agreement
Pre-Hearing Conference (PHC)
• Generally scheduled after the Resolution Session
• Conducted by phone with the attorneys and hearing
officer
• Covers a range of issues
• Basic case management
• Time needed to present case
• Hearing dates
• Disclosure dates
• Other deadlines
• Summarize and narrow the legal issues and responses
• Likely evidence, including witnesses
• Filing preference (email, fax, hand, etc.)
• Open or closed hearing
Pre-Hearing Order
• Pre-hearing Order will be issued after each Pre-hearing
conference
• You usually have three days to object to anything in the
order
• Carefully review the pre hearing order to:
• Make sure your issues are all included in the prehearing order
• Make sure witnesses are listed correctly
• Note any specifics about what must be in your disclosures
(proffers of testimony; designation for experts; CV’s of experts)
• Note any specifics about how disclosures are to be delivered
• Ask for clarification on any issue that is not totally clear to you
Due Process Hearing Disclosures
• 5-Day Disclosure Rule
•
There is no
typical discovery
in due process
hearings.
Everything is
covered by the
Disclosures.
•
At least 5 business days before a hearing, parties
must provide copies of all evidence they intend to
use at the hearing to each other and the Hearing
Officer.
Anything the Student Hearing Officer receives
after 5:00 pm is considered as having been filed
the next business day
• Both sides file the same day, so disclosures
are NOT responsive
• Most motions must also be filed by the
disclosure date
• Absent limited legal requirements or
specific instructions from a hearing officer,
parties are free to disclose or withhold
whatever documents they want.
Choosing Documents for Disclosures
• You must include
• Any evaluations or written reports you will rely on or your experts will
rely on
• You should consider including:
• Any IEPs relevant to the time period
• Any relevant correspondence with the LEA
• Record requests
• Meeting confirmations
• Meeting note addendums
• Other advocacy letters
• Proof of receipt
• Fax confirmation sheets
• Read receipts from emails
• Other delivery receipts
• Any other documents useful to support your claims
Organizing the Disclosures
• Include a cover letter, addressed to Respondent
• Cover letter will include a witness list
• Names, addresses and telephone numbers.
• Proffer of testimony
• Expert Witnesses:
• If any expert has created a report you have used and intend to use
at hearing, you must include that
• You must include a resume of any witness who will be called as an
expert
• Designate them as a potential expert
• Designate any witnesses who may be testifying by telephone
• Cover letter should also include a list of exhibits
• Grouped by type of document with a number
• May want to organize them in reverse chronological order
Impeachment Documents
• Technically, do not need to be in disclosures
• Impeachment documents are not being entered in as
evidence
• Not all Hearing Officers allow non-disclosed
documents to be used for impeachment
• Hearing Officers can, sua sponte, admit any
document into evidence during the course of the
hearing.
• If the Hearing Officer finds the document used to impeach
important to the overall case, it may come into evidence
anyway.
Delivering Disclosures
• All exhibits must be numbered
• Numbering the pages may make for easier reference in the
hearing
• Service
• Serve Respondent first, then the Student Hearing Office and Hearing
Officer
• Attach service confirmation to SHO’s copy
• Per the SOP, service is only via fax or hand delivery
• The PHO may specify that email delivery counts
• The pre-hearing order (PHO) may contain specific disclosure
requirements
• How the Hearing Officer would like his/her copy of the disclosures
• Whether there are specific requirements for pagination
• Whether the Hearing Officer wants parties to consult and offer joint
exhibits.
Service Addresses and Phone Numbers
• Office of General Counsel (OGC)
• DCPS Headquarters
• Address: 1200 First St., NE, 10th Floor, Washington, DC 20002
• Phone: (202) 442-5000
• Fax: (202) 442-5097/98 (sometimes preferred for disclosures)
• Fax: (202) 442-5115 (authorized fax number for serving
complaints)
• Student Hearing Office (SHO)
• OSSE Headquarters
• 810 First Street, NE, 2nd Floor, Room 2001, Washington, DC
20002
• Phone: (202) 698-3819
• Fax: (202) 478-2956
Settlement
• May decide to make a written settlement offer
• Settlement discussions are confidential
• Settlement Realities
• Settlements after the resolution session rarely happen, and if they do, it
is not until close to or on the hearing date
• You may need opposing counsel’s permission before reaching out to
staff members from the LEA to discuss settlement (consult rules of
professional conduct)
• In reaching out to opposing counsel
• Careful discussing too many facts outside of what is contained in
the complaint when discussing settlement
• Some attorneys may not have reviewed the case prior to a week or
two before the hearing.
Due Process Hearings
• Where?
• OSSE Student Hearing Office (SHO)
• 810 First Street, NE, 2nd Floor, Room 2001,
Washington, DC 20002
• Who’s involved?
• Independent Hearing Officer
• Respondent and their witnesses
• You and your witnesses
Practical Things about the Hearing
• Hearing rooms are usually small conference rooms
with parties/attorneys sitting around a small table
• Everything is done sitting down
• You may or may not have time for a lunch break—
bring some snacks you can eat quickly just in case
• Prepare your client for:
• Hearing upsetting things/untrue things
• Formal expectations for behavior even in a informal setting
• How you will communicate with each other during the hearing
• Phone witnesses:
• They must testify in a room by themselves
• They must have Petitioners’ and Respondents’ disclosures in front of
them
The Hearing: Before Opening Statements
• Introductions and Reading of Parent’s rights
•
You can waive a formal reading of the parent’s rights
• Preliminary Matters
•
•
•
Ruling on outstanding motions
Introduction of any new or renewed oral motions or requests
• Often rule on witnesses is invoked
Admitting the Disclosures into evidence
• Objections to documents/witnesses
• Hearing Officers will either rule on the objection or hold a
document/witness in abeyance
• Only documents held in abeyance need to be formally entered into
evidence through witness testimony
• Everything else that is entered is part of the record, whether a witness
testifies about it or not.
• You must often assert that you have preliminary matters
Evidentiary Rules
• Evidentiary rules are not strictly applied in due process
hearings
• BUT you may have to get evidence in through witnesses if
there are objections to your evidence in your disclosures
• In those cases, you will need to lay a foundation for admission
• Standards for laying a foundation are also more relaxed
• Hearsay is admissible
• Goes to weight rather than admissibility
• Double or triple hearsay may still be barred
• Useful hearsay:
• Your letters to the school
• Client or paralegal’s statements about what happened at meetings
Evidentiary Law to Review
• Qualifying an expert witness
• Waggman v. Forstmann 217 A.2d 310 (DDC 1966)
• Use of expert must involve a subject related to a science,
profession, business or occupation to a level beyond the ken of the
average layperson
• Witness must have such skill, knowledge or experience in that field
that his/her opinion will probably aid the trier of fact
• When experts can give testimony to Issues of ultimate fact
• When lay witnesses can give opinions
• Lay witness opinion is often allowed
• Particularly witnesses who are testifying to what they
recommended in an IEP meeting and why
• Weight versus admissibility
• Hearsay and its exceptions
The Hearing: Case in Chief
• Opening statements
• Petitioner goes first
• Respondent may reserve opening
• Petitioner’s witnesses:
• Your witness order may need to be flexible
•
•
May need to account for differing witness availability
Voir dire will be needed for all experts if there is no stipulation as to
qualification
• Have a specific area in which you want your witness to be qualified
• Witnesses can often testify by phone
•
However, that must have been indicated in your disclosures
• Respondent’s witnesses:
• Not all listed witnesses may actually testify
The Hearing: Closing Arguments
• Be sure to include references to relevant legal cases in your
closing
• Print out copies of less well-known cases for Respondent
and the HO
• Incorporate what has happened at the hearing in your closing
• Cite to specific documents and testimony
• Provides a road-map to the hearing officer
• You may have to give your closing within minutes of the close
of Respondent’s case in chief
• Written closings are sometimes allowed
• At the discretion of the Hearing Officer
• May delay the close of the case and the delivery of an HOD
• May be subject to page limits
The Hearing: Make Your Record
• Objections
• Opposing counsel questions, witnesses, documents
• Limitations on presentation of your case in chief
• Renewed objections that were previously ruled on prior to the hearing
• Proffers
• Comes after an objection to a restriction on your ability to put forth
evidence
• Oral proffer by attorney to let the record reflect what the witness would
have testified to, what the document would have supported, etc.
• Reinforcing important points
• Opening, witness testimony, closing
• Refer to documents as much as possible
• Witness testimony
• Closing (and perhaps the opening)
The Hearing: Expect the Unexpected
• Not all Hearing Officers allow a standardized
presentation of your case
• Not all Hearing Officers will allow you to present
everything you want to present, especially if time is
getting tight
• Object to preserve your record!
• Proffers can be used to further establish your
record
Post Hearing Motions/Filings
• Hearing Officers may request post-hearing
memorandum or filings.
• You may request additional time to flesh out an area
of law
• Memorandums are generally on issue(s) the Hearing
Officer didn’t have enough information on at the
hearing
• Motions/Filings On Areas Not Covered at Hearing
• Written Closings
• Affidavits
Hearing Officer Decisions
• Are issued after the record has been closed
•
After all post-hearing memoranda or written closings have been received
• Will be issued with identifying information regarding the student removed
• Are issued within 75 days of the date of filing
•
Could be longer if there was a continuance
• Will outline:
•
•
•
•
Facts
Issues
Whether Petitioner met the burden on each issue
Legal reasoning/Legal standard
•
Any remedy due Petitioner
• You will need to assist to help implement any compensatory education
• You may also need to be proactive to ensure that other remedies ordered
are implemented
Children’s Law Center works to give every child in the District of Columbia
a solid foundation of family, health, and education. We are the largest provider
of free legal services in the District and the only to focus on children.
Our 80-person staff partners with local pro bono attorneys to serve
more than 2,000 at-risk children each year. We use this expertise to advocate
for changes in the District’s laws, policies and programs.
Visit www.childrenslawcenter.org to learn more.
Section 504 of the
Rehabilitation Act of 1973
504 Plans at School
Tracy L. Goodman, Director, Healthy Together
Kathy Zeisel, Senior Supervising Attorney
Pro Bono Special Education Training
June 2014
What is Section 504?
• The Rehabilitation Act of 1973, Section 504 is a broad civil rights law which
protects individuals with disabilities in any agency, school or institution
receiving federal funds from discrimination and establishes their right to
have the opportunity to fully participate with their peers.
• Regulations create affirmative obligations for schools that accept public
funding for students with disabilities of mandatory school age
• Schools are required to provide a FAPE
• In DC, school is mandatory from age 5 (kindergarten) through age 18.
• For younger students who attend a public elementary school, the
regulations are slightly less clear, but can be argued that they also are
entitled to a FAPE.
•
34 C.F.R. 104.31-.39
Who is Protected?
• Section 504 covers qualified students with disabilities who attend
schools receiving Federal financial assistance.
• To be protected under Section 504, a student must be determined
to:
•
•
•
Have a physical or mental impairment that substantially limits one or more
major life activities; or
• Schools are not allowed to consider “mitigating measures” (e.g.
medication, hearing aids, etc.) when considering whether a child is eligible.
Have a record of such an impairment; or
Be regarded as having such an impairment.
• A Major Life Activity can include:
•
•
•
•
•
Caring for oneself
Performing manual tasks
Walking, seeing, hearing, speaking, breathing
Learning
Working
What does the law require of schools?
• Provide a free appropriate public education (FAPE) to qualified
students in their jurisdictions with a physical or mental impairment
that substantially limits one or more major life activities.
•
FAPE through Section 504 is generally defined the same as under IDEIA (case
law)
• Schools must take steps to identify and plan for educating students
with disabilities. Consequently, they must:
•
•
•
Conduct Evaluations
Develop a plan
Provide protections (e.g. disciplinary protections)
• Schools must eliminate barriers that would prevent a student with a
disability from participating fully in the programs and services being
offered to peers.
• Schools must provide reasonable accommodations and supports to
allow the child to participate in the general curriculum and program
Evaluations
• Districts are required to evaluate students with a suspected
disability
•
•
•
Tests must be tailored to measure the student’s aptitude and achievement.
Generally are less comprehensive than special education evaluations
A doctor’s diagnosis, without proof of substantial limitation on the student’s
ability to learn or another major life activity, is not sufficient
• Parent must consent to initial evaluations
• Re-evaluations must be conducted before a significant change of
placement.
•
An exclusion from an educational program for more than 10 days is considered a
significant change in placement.
• In all other cases, re-evaluations must be conducted “periodically”
•
•
No specific time frame
The Law encourages using the IDEIA time frame to meet the requirement
Content of the Plan
• Regular education teachers/social workers often
implement 504 plans
• Can include:
•
•
•
•
•
•
Medical interventions/services (e.g. nursing services)
Behavior interventions
Accommodations
Modifications
Transportation
Services: OT, PT, SLT, specialized instruction
Development of the Plan
• There is no set team of people, but typically includes:
•
•
•
•
Parents
Teacher(s)
Evaluator
School nurse
• Parental consent is NOT required to implement a plan
• Parental participation is NOT required to create or
revise subsequent plans
Legal Protections
• All districts must provide procedural rights information to parents
•
Must include notice, an opportunity to review relevant records and access
to an impartial hearing
• All districts must have a dispute resolution/hearing mechanism
•
Each LEA operates their appeals process differently.
•
Some LEA’s have failed to create a proper appeals process.
• Disciplinary protections for children who are eligible for Section 504
are the same as for children who are eligible for the IDEIA
•
Manifestation determination must be held for a child who has been
suspended or otherwise excluded from class for 10 days in a single school
year
When are 504 Plans Used in Practice?
• Where the child has a disability and needs
accommodations but does not require special
education services such as:
• Child with allergy needs classroom accommodations (e.g.,
nut-free environment)
• Child with ADHD needs to be allowed to doodle or do other
work to avoid being disruptive
• Child in a wheelchair requires elevator access and bus
transportation
IEP vs. 504 Plan
• With an IEP, the parent and child has more legal
protections and more direct legal remedies
• With an IEP, it is generally easier to get services in
place
• Schools often takes the position that they are not required
to provide services under 504
• This is because there is no federal funding for 504 plans but
there is funding for special education services
More Information
• DCPS entered into a Resolution Agreement subsequent to an OCR
complaint regarding lack of diabetes care in its schools which
requires the establishment of appropriate 504 grievance procedures
 http://www.ulsdc.org/DCPS%20Final%20Signed%20OCR%20Agreement%208%2022%2012.pdf
 Colin Bishop, DCPS’s 504 Coordinator, colin.bishop@dc.gov.
• The federal Department of Education Office of Civil Rights has great
information:
 http://www2.ed.gov/about/offices/list/ocr/504faq.html
• OSSE has also provided guidance to LEA’s on their obligations under
Section 504
 osse.dc.gov/sites/default/files/dc/sites/osse/publication/attachments/OSSE_DS
E_Section 504_Toolkit 08 28 12.pdf
Children’s Law Center works to give every child in the District of Columbia
a solid foundation of family, health, and education. We are the largest provider
of free legal services in the District and the only to focus on children.
Our 80-person staff partners with local pro bono attorneys to serve
more than 2,000 at-risk children each year. We use this expertise to advocate
for changes in the District’s laws, policies and programs.
Visit www.childrenslawcenter.org to learn more.