Post on 08-May-2018
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
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complaint was withdrawn or dismissed)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complaint was withdrawn or dismissed)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: 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
Remedies Compensatory education Tuition reimbursement Private placements at public expense Other relief
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!
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!