Due Process Hearings & State Administrative Complaints

Presented by: Michael P. Stafford

April 24, 2013

Special Education Litigation

Some Delaware Facts and Figures Total number of public education

students: 2011: 129,385 2012: 130,610

Total identified as special education 2011: 18,675 2012: 19,186

Litigation

National trends 2007-2008 SY 18,869 due process complaints filed

nationally 3,218 hearings held (17%)

2008-2009 SY 18,020 due process complaints filed

nationally 2,904 hearings held (16%)

Due Process Hearings in Delaware Number of Due Process Complaints

Filed: 2009-2010: 20 (4) 2010-2011: 7 (0) 2011-2012: 12 (1) (Actually adjudicated. If not adjudicated

complaint was withdrawn or dismissed)

State Complaints Can by filed by any person or

organization; Must allege a violation of IDEA Part B

of Delaware regulations; DOE appoints investigator; Written decision on each allegation

within 60 days.

Special Education Complaints in Delaware Number of State Complaints Filed: 2009-2010: 15 (10) 2010-2011: 6 (3) 2011-2012: 14 (10) (Written decision, if decision not issued,

complaint was withdrawn or dismissed)

Regulation 211 School board members must receive

a copy of any due process complaint received by the Department from the district superintendent, as well as a copy of any hearing panel decision or civil action filed by a parent seeking judicial review of a hearing decision.

Due Process Hearing Panels

Due process: timelines Resolution process (30 days) Resolution meeting (15 days) Mediation

45 day rule

Expedited hearings for disciplinary

removals.

Hearing rights Representation by counsel; Subpoena witnesses Present evidence/cross-

examine witnesses; Prohibit introduction of evidence Obtain a transcript of hearing Obtain written decision with

conclusions of law and findings of fact

Resolution Meeting

Mediation

Remedies Compensatory education Tuition reimbursement Private placements at public expense Other relief

Avoiding due process Parent’s litigate because…

District errors: Two categories Those that lead a parent to file a due

process complaint, and

Those that decrease our chances of success in litigation.

What can a District do? Make recommendations based on

objective data and facts. Listen to parents concerns- even

when you know they are wrong. Make sure the IEP actually addresses

the child’s areas of need. Measurable goals and objectives. Be PROACTIVE!

Trust & Communication

What if Due Process is filed anyway?

Case Assessments Clear lines of communication Copy and review files Meet with staff/ get views of key

players Identify the good, the bad, and the

ugly Develop a litigation assessment with

counsel

Key Considerations Do procedural errors exist? And if so, how bad are they?

Do substantive errors exist?

Do we have

Key Considerations Have we laid the foundation for the

action we’re proposing? Step back, and think about the optics

objectively. Honestly assess strengths and

weaknesses of program & staff. Consider the make-up of the panel. Cost v. benefit analysis

The playing field isn’t equal… … And the potential costs are high! District’s bear burden of proof in due

process hearings. Statute has fee’s shifting provision. Parent’s can get expert

witness fee’s in Delaware. Litigation is always risky!

To Litigate or Not to Litigate- that IS the Question

Winning! The Keys to Success