ADVANCED ADVOCACY: IEPS AND DISPUTE

RESOLUTION

Devon Rios Barellano, Esq.Specializing in special

education law and litigation

Elizabeth Eubanks, Esq.Inland Empire Regional

Director, Disability Rights Legal Center

Disclaimer

This presentation is for general information and educational purposes only, nothing should be construed as specific advice regarding your individual legal issue or case nor does it rise to the level of an attorney-client relationship.

Presentation Overview

• Today we will cover: • Legal standard for special education and related services• Strategies in representing students with special education needs• Tools to resolve conflicts• Common areas of disagreement • Evaluating dispute resolution options

Individuals with Disabilities Education Act

• Federal law that provides for special education and related services for eligible students with disabilities.

• The State must make a free appropriate public education (FAPE) available to all resident children between the ages of 3 and 21, including children with disabilities who have been suspended or expelled from school.

Special Education Defined

Statutory Definition: “specially designed instruction, at no cost to the parent, to meet the unique needs of individuals with exceptional needs, including instruction conducted in the classroom, in the home, in hospitals and institutions, and other settings, and instruction in physical education.” Cal. Educ. Code § 56031; see 20 U.S.C § 1401(29).

Should be in the least restrictive environment.

Two types of Legal Rights:

• Procedural

• An opportunity to: • Examine records • Participate in meetings• Obtain an IEE

• Prior Written Notice whenever the District proposes or refuses to initiate/change the identification, evaluation, or educational placement of the child or the provision of FAPE.

• Notice to parents in their native language

• Substantive

• Free Appropriate Public Education• All children between 3-21

• Appropriate = reasonably calculated to enable the child to receive educational benefits. • Not “best” education

Individualized Education Plan (IEP)

• ALWAYS START HERE – present the issues/concerns to the IEP Team• A “cooperative” process between parents and schools.

• The school district must provide a written offer of FAPE- A comprehensive statement of the educational needs of a child with a disability and the specially designed instruction and related services a district will employ to meet those needs.

• In creating an IEP, the District must follow the procedural safeguards.

Components of an IEP:

• A statement of the child's present levels of academic achievement.• A statement of measurable annual goals, including academic and functional goals.• A description of how the child's progress toward meeting the annual goals will be measured and when

periodic reports on the child's progress toward meeting the annual goals (such as through the use of quarterly or other periodic reports, concurrent with the issuance of report cards) will be provided.

• A statement of the special education and related services and supplementary aids and services to be provided to the child.

• An explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular class and in the extracurricular or other nonacademic activities.

• A statement of any individual appropriate accommodations that are necessary to measure the academic achievement and functional performance of the child on statewide and districtwide assessments.

• The projected date for the beginning of the services and modifications along with the anticipated frequency, location, and duration of those services and modifications.

Requesting a new IEP

• Parents have the right to request an IEP meeting at any time (Cal. Educ. Cod §§ 56343,56343.5)• School district must convene an IEP meeting to discuss lack of

expected progress (Cal. Educ. Code § 56341.1(d)(1))• School district must convene meeting 30 days after parents’ request

(Cal. Educ. Code § 56343.5)• School districts are not required to convene IEP meetings during

winter, spring, or summer breaks

Do I ask for Another IEP or Am I Ready for Dispute Resolution?

IEP/Evaluation Request: 1. Requests for changes are not clear2. Needs are not established or discussed3. Assessments pending

Dispute Resolution: 4. Do you know what you are requesting? 5. Can You support it? 6. Do you understand the legal standard/likely outcome? 7. Is your client prepared (mentally, organizationally and with proper support) to go as far as

necessary to have the needs met?

Negotiation Definition

“Bargaining (give and take) process between two or more parties (each with its own aims, needs and viewpoints) seeking common ground to reach an agreement to settle a matter of mutual concern or conflict” (www.businessdictionary.com)

How does this definition apply to resolving special education disputes?

Pre-filing ADR

• Informal

• Largely unregulated

• No procedural safeguards

• Issues to consider: • Who will be there?• Will you be negotiating a settlement agreement or IEP terms?

Enforcement if you Informally Resolve?

1. California Department of Education enforces mediated settlement agreements—not contracts outside the process.

2. Are you prepared to enforce in state court, if necessary?

Pre-filing Mediation

• Office of Administrative Hearings will provide a mediator at no cost. • Should be impartial

• ATTORNEYS OR OTHER “INDEPENDENT CONTRACTORS” MAY NOT ATTEND

• Issues to consider: • Balance of power if your client attends unrepresented

State Complaint

State Compliance Complaint

• California Department of Education

• State Complaint• CDE must investigate all

complaints• State complaint used mainly

for procedural errors• See 5 C.C.R. §§ 4600 et seq.

http://www.cde.ca.gov/index.asp

Address: Complaint Management and Mediation UnitSpecial Education DivisionCalifornia State Department of Education1430 N. Street, Suite 2401Sacramento, CA 95814

Telephone: (916) 319-0800 or 1 (800) 926-0648

Fax: (916) 327-3704

Office of Civil Rights

Discrimination Complaint Office of Civil Rights (OCR) Federal Complaint OCR does not have to investigate all

complaints OCR complaint used mainly for

allegation of discrimination

Address:Office of Civil Rights Region IXU.S. Department of EducationOld Federal Building50 United Nations Plaza, No. 329San Francisco, CA 94105

Telephone: (415) 437-8310Fax: (415) 437-8329TDD: (415) 437-8311

http://www.hhs.gov/ocr

Due Process Filing

• Administrative forum• Governed by the Office of Administrative Hearings

• Attorneys/advocates can and often are present• Trial-like environment• Evidence• Witnesses• Administrative law judge a.k.a Hearing Officer • Right to appeal• Right to recover attorneys’ fees *

• Stay Put

When to file for Due Process

• When there is a disagreement between you and the school over what is a Free and Appropriate Public Education (FAPE)• Implementation• Eligibility• Assessments• Changes to IEP without your approval and/or• Placement

• District takes parent/educational rights holders to due process

Due Process Timeline

• Parent must file within 2 years from the time parent knew or should have known of the injury or event

• School district must answer complaint within 10 days of filing (PWN)

• Resolution meeting must be held within 15 days of filing the complaint

• Mediation within 30 days of filing the complaint

• Hearing must be set within 45 days after the 30 days to resolve [75/45]

• Appeal to state or federal court within 90 days of Order

Legal Standard and Basic Procedures

• Burden of proof –is on the moving party• Most of the time the parent bears the burden of proof to show a denial of

FAPE

• Evidence• At least 5 business days prior to the hearing, each party must disclose

evidence that they plan to use at the hearing (34 C.F.R. § 300.512(b)(1))

Remedies

• Compensatory Education - equitable remedy to make up for education lost due to district violation of FAPE

• Reimbursement – for parents that have paid to provide FAPE

• To decide any issue of FAPE (placement, related services, least restrictive environment)

• Prevailing Party Status – as to each issue

Common Settlement Terms1. Substance: Do you know exactly what you are being offered. (some

examples)

2. What are you giving up in exchange for what you are getting? • Just the narrow disputed issue? • All educational disputes? • Legal rights beyond special education? • For how long are you giving these things up?

Sample Waiver Language Current Issue only

“Student waives all claims related to students speech and language services from January 28, 2013 to date of full execution of this agreement” • What are you giving up? • What is the time frame?

Sample Waiver Language

1. Time Frame? 2. Areas?

Questions?

Contact Information

Devon Rios Barellano Law Office of Devon Rios

Barellano Special Education Law and

Advocacy 12227 Philadelphia Street

Whitter CA 90601 (562) 360-1728

Devon@Riosbarellanolaw.comwww.riosbarellanolaw.com

Elizabeth EubanksDisability Rights Legal Center

At University of La Verne College of Law

320 East D. Street Ontario, CA 91764

(909) 460-2034Elizabeth.Eubanks@lls.edu

DisabilityRightsLegalCenter.org