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CLE for Lunch: Special Education – An Introduction to Impartial Due

Process Hearings in NY

June 24, 2015; 12:20 PM – 1:35 PM I. Please rate each speaker in this session on a scale of 1 - 4

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Jennifer Frankola

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CLE FOR LUNCH: SPECIAL EDUCATION – AN INTRODUCTION TO

IMPARTIAL DUE PROCESS HEARINGS IN

NY Prepared in connection with a Continuing Legal Education course presented at New York County Lawyers’ Association, 14 Vesey Street, New York, NY

scheduled for June 24, 2015

Program Co-sponsor: NYCLA’s Education Law Committee

Program Chairs: Nelson Mar, Legal Services NYC, Chair, NYCLA’s

Education Law Committee; Jessica Limbacher, Volunteer Lawyers for Justice

Faculty: Jennifer Frankola, Lewis Johs Avallone Aviles, LLP

This course has been approved in accordance with the requirements of the New York State Continuing Legal Education Board for a maximum of 1.5 Transitional and Non-Transitional credit hours; 0.5 Professional Practice.; 1 Ethics.

This program has been approved by the Board of Continuing Legal education of the Supreme Court of New Jersey for 1.5 hours of total CLE credits. Of these, 1 qualifies as an hour of credit for ethics/professionalism, and 0 qualify as hours of credit toward certification in civil trial law, criminal law, workers compensation law and/or matrimonial law.

ACCREDITED PROVIDER STATUS: NYCLA’s CLE Institute is currently certified as an Accredited Provider of continuing legal education in the States of New York and New Jersey.

Information Regarding CLE Credits and Certification

CLE for Lunch: Special Education – An Introduction to Impartial Due Process Hearings in NY

June 24, 2015; 12:20 PM to 1:35 PM

The New York State CLE Board Regulations require all accredited CLE providers to provide documentation that CLE course attendees are, in fact, present during the course. Please review the following NYCLA rules for MCLE credit allocation and certificate distribution.

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the end of the course. The certificates will bear your name and will be arranged in alphabetical order on the tables directly outside the auditorium.

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New York County Lawyers’ Association

Continuing Legal Education Institute 14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646

CLE for Lunch: Special Education – An Introduction to Impartial Due Process Hearings in NY

Wednesday, June 24, 2015, 12:00 PM-1:35 PM

Program Co-sponsor: NYCLA’s Education Law Committee

Program Chairs: Nelson Mar, Legal Services NYC, Chair, NYCLA’s Education Law Committee; Jessica Limbacher, Volunteer Lawyers for Justice

Faculty: Jennifer Frankola, Lewis Johs Avallone Aviles, LLP

AGENDA

11:30 AM – 12:00 PM Registration 12:00 PM – 12:20 PM Lunch 12:20 PM – 1:35 PM Presentation, Discussion and Questions and Answers

CLE for Lunch:

Special Education – An Introduction to Impartial Due Process Hearings in NY

Sponsored by: NYCLA’s Education Law Committee, Nelson Mar, Legal Services NYC, Chair, NYCLA’s Education Law Committee; Jessica Limbacher, Volunteer Lawyers for Justice Presented by: Jennifer Frankola, Esq., Litigation Associate at Lewis Johs Avallone Aviles, LLP

OUTLINE

A. Overview of Special Education Law Special Education Law is a civil rights practice, a mix of federal, state and administrative practice and includes a long list of specialized acronyms often referred to as an “alphabet soup.” Federal and New York State laws regulate the education of children with disabilities. The Individuals with Disabilities Education Improvement Act (“IDEA” or “IDEIA”), Section 504 of the Rehabilitation Act of 1973 (“Section 504”), and Title II of the Americans with Disabilities Act (“ADA”). In New York, the main state law is Article 89 of the New York Education Law. Under the IDEA, a school district is obligated to provide a free, appropriate public education in the least restrictive environment to all children with disabilities.

1. Who is a child with a disability? a. IDEA defines a “child with a disability” as a child:

i. with mental retardation (intellectual disability), hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance…,orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and

ii. who, by reason thereof, needs special education and related services. (20 U.S.C. 1401 Sect. (3)(A)).

2. Is the school district providing the child with a “free appropriate public education

(FAPE)?” a. IDEA defines FAPE as:

i. Special education and related services that: 1. have been provided at public expense, under the public supervision

and direction, and without charge, 2. meet the standards of the State educational agency, 3. include an appropriate preschool, elementary school, or secondary

school education in the State involved, and

4. are provided in conformity with the individualized education program (IEP) required under section 614(d) [of the IDEA, codified at 20 U.S.C. Sect. 1414(d)].

FAPE is further defined by the Supreme Court case Board of Education v. Rowley, 458 U.S. 176, (1982). Rowely held that an appropriate education under the IDEA requires that the IEP meets two criteria:

• Procedural: The IEP must be developed according to the procedures under the IDEA. If procedures are not followed, then it’s not appropriate.

• Substantive: The IEP must be “reasonably calculated to enable a child to receive educational benefits.”

3. Is the school district providing FAPE in the Least Restrictive Environment (LRE)?

According to the IDEA, a FAPE must be provided in the LRE, “to the maximum extent appropriate.” “Children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and special classes, separate school, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” 20 U.S.C. Sect. 1412(a)(5)(A). Remember: Always FAPE first.

Child Find Child Find is another provision of the IDEA. This provision placed an affirmative obligation on school districts to identify, locate and evaluate children who may have disabilities within their jurisdiction. This applies to children in public or private or religious schools/institutions. 20. U.S.C. Sect. 1412(a)(3); 8 N.Y.C.R.R. Part 200.2(a)(1). Pendency/Stay Put Pendency is a procedural provision of the IDEA which provides that: “[During the pendency of any proceedings…unless the State or local educational agency and the parents otherwise agree, the child shall remain in the them-current educational placement of such child, or, if applying for initial admission to a public school, shall, with the consent of the parents, be placed in the public school program until all such proceedings have been completed.” 20 U.S.C. 1415(j).

B. What happens when the school district doesn’t offer FAPE?

1. Encourage COMMUNICATION between the parent and the school district. 2. Request (in writing) for an IEP MEETING or a REFERRAL to the Committee on Special

Education (CSE) to discuss student’s failures/needs/progress and/or need for evaluations. 3. EXAMINE your child’s academic, social, emotional and physical needs based on his/her

development in and outside of school. 4. Develop a PLAN based on expert advice to address your needs with services in school or

outside of school. 5. Request a MEDIATION or a HEARING or file a COMPLAINT.

C. ETHICS: Representation of Clients in Special Education Proceedings

1. Be VERY clear in your retainer about whom you represent, fees and the scope of

representation. 2. Attach the “Clients Rights and Responsibilities” form. 3. Check for and report on potential CONFLICTS. 4. Model Rule 1.14, 1.6, the IDEA and its comments.

• One of the bedrocks of the IDEA is parent involvement in the process of determining appropriate educational services for their child. (20 U.S.C. Sect. 1400©(5)(B)) (2004).

5. The child is the subject of the hearing, but the parents are usually the party who retains the attorney and they have a distinct right to make decisions on behalf of their child.

• SCOTUS recognizes the right of parents to be involved in the decisions regarding their disabled children. Rowley at 208; Winkelman v. Parma City Sch. Dist., 550 U.S. 516 (2007).

6. Divorced parents? Check the custody agreement and get copies of the court papers. • Fuentes (NY): Parent who has “actual custody” is the only one who can make the

educational decisions. The non-custodial parent can participate in ministerial duties (getting records, etc.)

• Get full voluntary consent in writing.

D. PRACTICE TIP: Counseling Parents

1. Initial Intake a. Get all contact information and emergency contact information. b. Explain their rights and responsibilities. c. Decide which is the best way of communication (letter, phone call, email). d. Sign retainer.

2. Get them organized! a. Binders, folders, files, labels. b. Parents keep originals; lawyer gets copies.

3. Write a letter to school district requesting to release full and complete set of child’s records. Send Health Insurance Portability and Accountability Act (HIPAA) forms if necessary.

4. Gather evaluations (both public and private).

5. If further testing is needed, write a letter to the school district to request IEEs. 6. Explain PRONG 3: The “balancing” of the EQUITIES.

E. The Hearing Process

1. Statute of Limitations:

a. 2 Year Statute of Limitations from after when the parents “knew of should have known” about the action that forms the basis of the complaint. 8 N.Y.C.R.R. Sect. 200.5(j)(3).

b. This does not apply if the school district prevented the parent form requesting a hearing.

2. What to include in the hearing request? a. Child’s name b. Address c. NYCID # (if known) d. School name and address e. Nature of the PROBLEM/ISSUES of the case (including relevant facts) f. Proposed RESOLUTION/REMEDIES (to the extent known and available)

• You will not be able to raise issues that are not contained within the due process request for impartial hearing.

• Amending the request: This is permissible with consent from either the IHO or on consent from both parties. It re-starts the timeline including the statute of limitations.

3. School District’s Response

a. A school district has 15 days after receiving the due process complaint to challenge it as “insufficient” if it fails to include the above information. If challenged, the IHO has 5 days to determine whether it is sufficient. A parent may be permitted to amend. 20 U.S.C. Sect. 1415.

b. A school district has 10 days to provide a written response or answer.

4. Resolution a. Parties are required to attend a resolution session prior to the impartial hearing

unless both sides agree (in writing) to waive it. b. The school district must send written notice to the parent and schedule the

resolution session within 15 days after they receive the due process complaint. c. Must include a school district employee with decision making authority. d. Must provide both sides an opportunity to present, discuss and resolve their

issues. e. Resolution agreement—full? Partial? That’s ok! You have three days to review,

accept or reject. f. May not include an attorney, unless the parent is accompanied by an attorney. g. If not fully resolved at this session or within 30 days of receipt of the due process

complaint, the parents are entitled to move forward with their impartial hearing.

5. Timeline a. A hearing or prehearing conference must commence within 14 days after a) the

IHO receives written permission by both parties to waive the resolution session, b) a resolution session was held but no agreement could be reached, or c) 30 days have passed after the receipt of the due process complaint…whichever comes earliest. 8 N.Y.C.R.R. Sect. 200.5(j)(3)(iii).

b. If your client is ages 5-21, a decision must be rendered within 45 days. If your client is pre-school age or younger, a decision must be rendered within 30 days. 8 N.Y.C.R.R. 2005.(j)(5); 200.16(h)(9).

c. The IHO must render a decision no more than 14 days after the closing of the hearing record. 8 N.Y.C.R.R. 200.5(j)(5). Extensions may be applied.

6. Preparing for the Impartial Hearing/Administrative Trial

a. File a notice of appearance with the IHO b. Prepare and deliver any subpoenas to the IHO

• Subpoena records and school district employees • The IHO can sign subpoenas, but you must serve them. • Subpoena hearing?

c. Pre-hearing conferences • Narrow the issues and discuss subpoenas, documents needed, dates

d. Evidence/Disclosures • You must disclose to the District no later than 5 days before the hearing

date. 1. Fax or mail a copy to your adversary.

• Prepare an exhibit list/index and label each exhibit with page numbers (Letter, page # for Parent exhibits and Number, page # for District exhibits). Example, Ex. A-1; Ex. 4-1.

• Prepare at least 3 copies: Attorney copy, IHO copy and Witness copy. e. Witnesses

• You have the right to compel witness testimony. • Prepare your witness for direct and cross examination. • Choose your witnesses wisely. • Testimony by phone is permitted.

f. Burden of Proof • The school district has the burden of proof (presents their case first) • In unilateral placement/tuition reimbursement/funding cases

(Burlington/Carter/Connors), the parent has the burden to prove the appropriateness of the private school chosen.

g. The Trial • On the Record: The entire proceeding is recorded—this is important. You

have no jury, only your record and the IHO needs to rely on the record to make his/her decision. This record also travels up to any presiding review officer or judge on any appeal. Speak clearly and make sure to get copies of the transcripts to review for any errors

1. In NYC, the hearings are tape recorded. In the suburbs, they are usually recorded by a court reporter.

• Present your documentary evidence. • Argue/clear up any preliminary matters. • Opening Statements: both parties are permitted to present opening

statements. • Witnesses: direct and cross examination. • Closing Statements: you may be permitted to present a closing statement

on the record OR you may request (or the IHO may ask you) to submit closing briefs or a memorandum of law.

7. Appeals a. An appeal of an IHO decision may be filed with the New York State Education

Department (NYSED) under Part 279 of the regulations. b. Guidance and forms are available at http://www.sro.nysed.gov/ c. Further appeals of the NYSED decision could be brought in either state or federal

court.