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Special Education Advocacy:Protecting the Rights of Students with

Disabilities

LAF Children & Family Law Practice GroupEducation ProjectFebruary 7, 2012

Welcome to LAF’s Pro Bono Education Law Project

• The project• Scope of today’s training: Special Education +

Special Education Discipline• What we are not covering: Representing

students at expulsion hearings• Format: We will follow a case through the LAF

referral process and through the law.• Refer to the manual for an acronym cheat

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Meeting the LAF Special Pro Bono Project Team

Lizzy Ullman– eullman@lafchicago.org

– 312.229.6359– Contact Lizzy with questions about the panel or any cases you have

accepted.

Erin Han– Senior Attorney and Trainer for the Education Project

Mara Block– mblock@lafchicago.org– Contact Mara if you would like to schedule a pro bono event at your firm

or if you have general questions about LAF’s pro bono projects or opportunities.

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LAFLAF helps poor families and individuals to resolve their non-criminal legal issues and get back on track. LAF's more than 80 full-time attorneys and staff provide comprehensive free legal services for civil problems, including domestic violence, consumer fraud, and unfair evictions. We make equal justice a reality in metropolitan Chicago and break the cycle of poverty.

For over 40 years, LAF has been providing professional legal services to tens of thousands of people in metropolitan Chicago. LAF relies on private donations to fulfill its mission.

LAF Organizational Structure

Task Forces and Projects

Sources of Special Education Law

• Federal Law– IDEA (Individuals with Disabilities Education Act) (20 U.S.C § 1400, et seq.)

• Regulations at 34 C.F.R. §§ 300.1 et seq.– Section 504 of the Rehabilitation Act of 1973 (“Section 504”) (29 U.S.C. § 794)

• Standard: Disability that “substantially limits” major life activity,” in this case learning.• Limitations: No additional discipline protections, student need not benefit from the

modifications/accommodations• Regulations at 34 C.F.R. §§ 104, et seq.

– Americans With Disabilities Act (“ADA”) (Provisions largely overlap with student right s under Section 504)

– Key Question: Does the disability adversely affect educational performance?– Records Requests: FERPA

• Illinois State Law– Illinois Administrative Code: 23 Ill. Admin. Code 226.1 et seq.– Records Requests: ISSRA (15 days to reply)

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LAF PRO BONO PROJECT LOGISTICS:Accepting and intaking a case

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Getting on the Panel

• Email Lizzy to make sure that you are on the panel if you are interested in receiving referrals on education cases. Watch for emails to go out when cases are available. If you have a particular interest in specific types of cases or cases against particular school districts, let Lizzy know that.

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Receiving a Referral EmailHello, Pro bono Team!LAF has a new education case ready to refer to an attorney for representation.

Student is a 11-year-old girl in 5th grade at Neighborhood School. Parent is concerned because Student’s grades this year are very low, her standardized test scores are below grade level, she has been acting out in class and suspended twice for one day. Parent told the teacher she was concerned and 4 weeks ago she emailed the principal asking for Student to be evaluated for special education. The school never responded formally to her request, but the teacher mentioned that there is no funding right now for special education. Student was recently diagnosed with ADHD.

Based on the information we have, we believe that Student should be evaluated for special education services and likely found eligible in the category of OHI, however, the evaluations may show that another category is more appropriate.

The attorney who accepts this referral will want to begin by reading my notes, interviewing Parent and reviewing Student’s school file. The attorney will want to send a representation letter requesting an evaluation and if the school doesn’t comply file a Compliance Complaint. When the school agrees to evaluate the student, the attorney will want to participate in the domain meeting. Following the evaluation, the attorney will want to participate in the eligibility conference and IEP meetings.

Please contact Lizzy at eullman@lafchicago.org if you have any questions or are interested in accepting this referral.

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Accepting the referral

• Email/call Lizzy• Ask for the conflict check information and get

this conflict check run as soon as possible. • If you have no conflicts, confirm with LAF that

you will accept the referral. Lizzy will arrange to have the file sent to you, electronically if possible.

• Make an appointment to meet the client and to get your retainer signed.

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What should you discuss in the initial interview

• Who is your client? – Because the parent holds the child’s education rights (pursuant to federal law) in

special education matter, the parent is your client in a special education case.

• Get a release from the client to receive records (“cumulative/full education file”) from the school pertaining to the student.

• Confirm how well the current status of the case matches the referral information you received. Confirm important information, i.e. any pending dates or communications with the school as well as the parent’s goals.

• Building a rapport with your client (parent) and the student– Discuss confidentiality and need to maintain open communication– Involve the student in your advocacy when appropriate– Discuss transportation, communication issues and determine how you and the client

can best work together.– Check in with your client on a weekly basis.

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WHO IS ELIGIBLE FOR SPECIAL EDUCATION SERVICES?

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Who is eligible for special education services?

Federal law recognizes the following categories of disabilities: (34 CFR 300.8)•Mental Retardation (In Illinois will often read as a “cognitive impairment” in the IEP)•Hearing impairment•Speech or language impairment•Visual impairment•Orthopedic impairment •Autism •Deaf-Blindness•Traumatic brain injury (TBI)•Multiple disabilities (rarely used)•Emotional disturbance (ED)•Other Health Impairment (OHI)•Specific Learning Disabilities (SLD or LD)

Per state law, Developmental Delay is an available category in Illinois until 9 years old.

Emotional Disturbance (ED)• No specific diagnosis required—simply must exhibiting one or

more of the following characteristics over a long period of time and to a marked degree that adversely affects a child’s educational performance:

• Inability to learn that cannot be explained by intellectual, sensory, or health factors.

• An inability to build or maintain satisfactory interpersonal relationships with peers and teachers

• Inappropriate types of behavior or feelings under normal circumstances.

• A general pervasive mood of unhappiness or depression.• A tendency to develop physical symptoms or fears associated

with personal or school problems.

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Other Health Impairment (OHI)

AD/HD can be included here. You must be able to argue that the AD/HD adversely affects education.

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Specific Learning Disabilities (SLD or LD)

• See 34 CFR 330.8(c)(10), 300.307, 300.309; 23 Ill Admin. Code 226.130

• Severe discrepancy between intellectual ability and achievement (22 points or 1.5 SDs) + processing disorder

• Response to research based intervention

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Who is often overlooked?• Students exhibiting behavioral problems are

often overlooked for special education eligibility. – Often the behavior is chalked up as a “choice” of

the student rather than a manifestation of a disability.

– Often the impact that the behaviors have on the education are not recognized because they are not academic but social and/or result in time out of class. However, these factors still constitute an impact on education.

– Possible categories of eligibility: LD, ED, OHI

FINDING A STUDENT ELIGIBLE FOR SPECIAL EDUCATION SERVICES

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Steps in the Eligibility Process:Overview

• Request for evaluation• Domain meeting to determine areas in

which to test• Evaluation by the school• Eligibility conference to determine

eligibility• Drafting IEP

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Legal Remedies AvailableAt any point where this process derails, the parent (through her attorney) has the following legal remedies:

•State compliance complaint, filed with the Illinois State Board of Education (ISBE)

– This is a state investigation, so no further action is required once you file. You will not participate in a hearing or put on your case.

– When to use: Only available when there is a clear legal violation, not a disagreement about what is appropriate for the child.

•Due process administrative hearing, filed with the school district– An impartial administrative hearing office will be assigned by the State

and an administrative hearing convened where you would put on your case before the hearing officer.

– When to use: May use instead of a compliance complaint for legal violations, but may also use for disagreements about what is appropriate for the child.

•Federal TRO/Injunction

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THE SPECIAL EDUCATION TIMELINE: Qualifying Students for Services

• A request for a case study evaluation (CSE) or full individual evaluation (FIE) initiates the eligibility process.

• Legally, this request should be in writing, signed by the parent.

• However, schools are also obligated under “Child Find” to seek out students with special education needs.– So while a request that does not meet the requirements above

(is not in writing or not signed by education rights holder), may not trigger the precise legal timelines, nonetheless, one can argue that the school is put on heightened notice and should likely evaluate the student anyway.

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Timelines when CSE has been requested (in writing)

• District must decide whether to conduct the evaluation within 14 school days of receiving the request and take one of two actions (23 Ill. Admin. Code 226.110 (c)(3)):– Option #1: The district will agree to conduct the CSE.

• Must convene a “domain meeting” to determine which

assessments should be done to complete the CSE.• Meeting should include parent and other individuals having

knowledge and skills necessary to administer and interpret evaluation data.

• The school should request the parents’ signature to proceed with the testing.

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Timelines when CSE has been requested

– Option #2: If the district decides not to conduct the evaluation, then it must provide the parent with notice that conforms with the following requirements of 34 CFR 300.503(b):

• Describes the refused action;• Explains why the district will not conduct the CSE;• Describe any evaluations, records, assessments or reports

used in making decision not to evaluate;• States the parents’ right to legal protections (i.e. right to file

for due process) and means to obtain a copy of these rights;• Gives sources for the parent to contact to obtain assistance

in understanding notice;• Gives a description of other options that Team considered

and the reasons why they were rejected; and• Description of other factors relevant to refusal.

Return to Hypo

Is the school in violation of the law at this juncture in your hypothetical case?

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Common “Stall Tactics” when a CSE is requested

• “Response to scientific, research-based interventions” (RTI)– Per 23 Ill. Admin. Code 226.130 (b), while a

school may use this as part of an evaluation process, it may not use a student’s participation in this process to deny an evaluation.

• “School Based Problem Solving”• “Student Study Teams” (SSTs)• 504 plan

Hypo continued• You start to draft a compliance complaint, given

the school’s failure to respond to the CSE request. In the meantime, you also draft a letter to the school (cc’ing the attorney for the district), informing the school of your representation of Student B. Within one day, the school sends you a formal denial of the request to evaluate the student. In the denial, the school states that it hasn’t yet had time to conduct RtI on the student.

• What are your options now? Can you still file a compliance complaint? Is the denial valid?

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Hypo

• Suppose instead that the school responded to your representation letter, not with a denial, but with a notice of a domain meeting, to start the special education testing…

• What happens next?

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Advocating at a Domain Meeting

• Probably the least contentious meeting you will attend.

• Important to include all areas of suspected disability. – Don’t overlook speech and OT.

• It’s up to you and the client whether you will attend.

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Timelines when school agrees to evaluate

• Once the education rights holder signs the consent for testing, the district has 60 school days (23 Ill. Admin Code 226.110(d)) to complete the following:– The testing identified at the domain meeting;– A meeting to determine the student’s eligibility

for special education services; AND– An IEP meeting, if the student is deemed

eligible, to develop an IEP for the student.

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The “Eligibility Conference”

Following the CSE and before the end of the 60 day timeline, the school must convene a meeting to review the testing and to determine the student’s eligibility for special education services under federal and state law.

Advocacy Tip: Some schools call an eligibility conference a “multidisciplinary conference” or “MDC” (not to be confused with an MDR.)

Advocacy tips at the Eligibility• One of the most important meetings you will attend.• Be sure to get the assessment reports in advance of the meeting or

consider rescheduling.• Review the reports and research areas of confusion• Start with the summary to get an overview• Make sure that all subtests are included.• Be sure a BASC/Brief or other behavioral scale are included if there are

emotional issues. • Make sure a cognitive test was administered, even if the school wishes to

rely on RtI for considering LD. • Make sure the tester is taking into consideration time spent out of school

and social relationships as “impact on education”. • Make sure that any outside evaluations submitted by the parent are

considered by the evaluator.• Make sure exclusionary factors like “time out of school” are not

exaggerated.

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Who should attend an Eligibility conference or IEP meeting?

(See 34 CFR 300.321 and 23 Ill. Admin. Code 226.210)• Parents of the child (education rights holder…foster parent, surrogate if no

parent)• General education teacher (if child is in general ed)• Special education teacher or provider (if applicable)

– Advocacy Tip: Be pro-active about which teachers you want to attend.• Individual who can interpret evaluation results• Representative of public agency who can make commitments for provision

of resources and be able to ensure that the services in the IEP will be implemented– Usually the SSA for TDS placements.

• Bilingual specialist or teacher if needed• A person knowledgeable about positive behavior strategies, if behavior

impedes learning (usually school social worker)• At discretion of parent or agency, other individuals having knowledge or

special expertise regarding the child• The child where appropriate

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What if a student is found “ineligible” for an IEP?

• If you really think a student may be eligible, don’t give up if the school claims no disability:

– Was the student tested in all areas of suspected disability?– Did the parent have the opportunity to present additional information about the

student’s needs?

• Draft a dissent right at the meeting, have everyone who agrees with you (especially the parent) sign it, and have it attached to the meeting notes.

– You/parent can draft a dissent at any school meeting.

• The education rights holder has a right to request an independent educational evaluation (IEE) at public expense if s/he disagrees with the district’s testing. (34 CFR 300.502)

– The district must either pay for the evaluation or take the initiative to file for due process. Simply saying “no” and doing nothing is not a legally appropriate alternative, but it happens all the time if left unchecked.

– The parent may not be required to provide a reason for his/her disagreement with the district’s testing.

• Due Process

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What if your client is found eligible for an IEP?

• Usually, the meeting will immediately become an IEP meeting and an IEP will be drafted on the spot.

• If there is insufficient time, an IEP meeting can be scheduled separately, but must still occur within the 60 day timeline.

• What if you disagree with the eligibility category.

Advocacy Tip: If you feel that the meeting is being rushed, don’t be afraid to slow things down and to ask for a subsequent meeting to be scheduled.

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What are the components of an IEP• Present levels of performance and measurable annual

goals• How disability affects child’s ability to access general

curriculum– LRE (least restrictive environment)

• Accommodations or modifications• Related Services

– counseling, transportation, classroom aid, etc.• Transitional Services

– For IEP to be in effect when child is 14.5– Employment, education, independent living skills

• Transfer of rights at age 18– Start informing child 1 year earlier

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A special word about Related Services…

• The definition for “Related Services” is extremely comprehensive under 34 CFR 300.34(a): – “Related services means transportation and such developmental,

corrective, and other supportive services as are required to assist a child with a disability to benefit from special education, and includes speech-language pathology and audiology services, interpreting services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, early identification and assessment of disabilities in children, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services for diagnostic or evaluation purposes. Related services also include school health services and school nurse services, social work services in schools, and parent counseling and training.”

– Thus, schools cannot claim, “We do not provide that service,” if a student requires it to benefit from special education.

– These are generally available irrespective of eligibility category

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What Placement Will Meet the Student’s Needs?

• This should be determined after the development of the IEP. – Sometimes this isn’t practical, so make a judgment call.

• Must respect the LRE requirement…but must be LRE for the child in question

• Hierarchy of possibilities– Mainstreaming– Mainstreaming with supports in the general education classroom

(“inclusion”)– Mainstreaming with “pull out” – Placement in a self contained special education classroom in a

mainstream school (possible pull out for lunch or extra curricular activities).

– Therapeutic Day School (TDS) (also called “separate day placement”)– Residential

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Other occasions for IEP meetings after the first IEP drafting meeting:

• Annual Review: Every IEP must be reviewed and renewed on an annual basis.

• “Three-year review”. At least every 3 years, the student should receive a new CSE to determine the student’s continued eligibility for services as well as to make sure that the services are still matching the disabilities.

• In addition to these mandatory timeframes for holding annual IEP reviews and 3 year re-evaluations, a parent may request an IEP meeting at any time. (23 Ill. Admin. Code 226.220(b). – When such a request for an IEP meeting is received from a

parent, the school has 10 days to reply to the parent’s request, with the same requirements under 34 CFR 300.503 as in response to a request for an initial evaluation.

– In these situations, it is often helpful to give the case manager an outline of your concerns in advance of the meeting.

Returning to HypoYou successfully advocated for Student and she was found eligible for an IEP. She remained placed at her Neighborhood School with additional supports and was successful for a short time period. Now, 9 months later, she is no longer making progress under her current IEP. Student is not reaching her goals, and the school is frequently sending her home, sometimes with official suspensions and sometimes informally without officially suspending her. Please help this student benefit from her IEP and remain in school on a daily basis.

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Other occasions for IEP meetings:

Where a student is transferring from another school district in IL and already has an IEP, the new district has 2 options under 23 Ill. Admin. Code 226.50(a):

• Option 1: Immediately adopt the out-of-district IEP and implement it as written.– This can happen without an IEP meeting.– The education rights holder must agree.

• Option 2: Develop a new IEP for student.– The parent must give the parent notice and a date for an IEP

meeting within 10 days of the student’s enrollment.– For as long as it takes to develop the new IEP, the receiving

district must implement services comparable to those described in the IEP from the former district.

– This option must be followed where the student is transferring from out-of-state.

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Amending an IEP without a meeting

• This is possible between annual reviews (see 34 CFR 300.324(a)(4)):– If the parent and school agree– If the Team is subsequently informed of

changes

Advocacy Tip: While this may seem like and often is a simple option, don’t go this route where there is a tendency toward confusion or miscommunication between the parties.

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When will a new or amended IEP be implemented?

• Pursuant to 23 Ill. Admin Code 226.220 (a), the IEP shall be implemented within 10 days.

BREAK

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DISCIPLINING STUDENTS WHO ARE ELIGIBLE FOR SPECIAL EDUCATION

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School Discipline

• Student Code of Conduct.– Suspensions– Expulsions

• General principle of discipline and disabilities is that students with documented disabilities should not be disciplined for behavior that is a manifestation of those disabilities.

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Disciplining Students with IEPs

• Suspensions– Special education students cannot be

suspended more than 10 total days per school year.

– “Informal removals” are not an appropriate way to avoid this rule. Parents should only be called for removal when a suspension notice will be served.

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Disciplining Special Education Students: Change of Placement defined

“Change of Placement” is any removal of a student as a form of discipline (as opposed to a decision by an IEP Team that a new placement is needed in order to provide the student with FAPE.)– Attempts to expel or unilaterally and permanently change

the placement by a school district obviously constitute “change of placements.”

– Exceeding the allowed 10 days of suspensions in a given school year also constitutes a “change of placement.”

– “Change of Placement,” tends to have negative connotations under special education law and does not generally refer to a joint decision by the Team to move a student to a new school.

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Disciplining Special Education Students : MDR

• In order to legally change a special education student’s placement in the manner described above, the school must 1st hold a Manifestation Determination Review (MDR):– This is a meeting of the IEP Team– Must determine:

• Whether the behavior in question is a manifestation of the student’s disability; or

• Whether the conduct was a direct result of the district’s failure to implement the IEP.

• If the answer to either of the prior questions is “yes,” then the school cannot proceed with the change of placement, expulsion, etc.

• If the answer to both of the prior questions is “no,” then the student may be disciplined like any other non-special education student.

– HOWEVER, if the student is expelled, the district must provide continued special education services during the period of the expulsion.

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Disciplining Special Education Students (continued)

• EXCEPTION to MDR Rule: 45 day emergency changes of placement– Only for the following incidents:

• Carries weapon to school, on school premises, or to or at school function;

• Knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance while at school or at school function; or

• Has inflicted serious bodily injury to another person while at school or a school function.

A New ReferralHello Pro Bono Team,

A new referral has come into LAF. Student B is a 16 year old boy who currently has an IEP for OHI and is placed at Neighborhood School in a self-contained classroom.

Three days ago he was engaging in a verbal argument with a teacher in the hallway and then hit him with an open hand across the cheek.

Parent tells you the school wants to meet with her, but she doesn’t know the purpose of the meeting. The date of the meeting has not been scheduled but the school tells her it will be soon.

If you are interested in accepting this referral please contact Lizzy at eullman@lafchicago.org as soon as possible.

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ENFORCEMENT• State Compliance Complaints

– Use this remedy when the school district is violating a timeline or failing to follow the IEP (an obvious “legal” violation).

• Administrative Due Process Hearings– Use this remedy when there is disagreement

between the school district or parent re: what the student needs.

– Issues appropriate for a compliance complaint may also be brought here.

• Federal TRO/Injunction

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Filing a State Compliance Complaint

• Do not use when there is a dispute about what a student needs

• Use for – Systemic problems– Clear procedural violations or clear non compliance

with an IEP.• How it works

– ISBE has 60 days to investigate claim.– If parent files for DP during investigation, the

investigation will be halted. – Parent can still file DP after, and the results of

investigation can be introduced as evidence.

Compliance Complaint:Nuts & Bolts

• Complaint in the form of a letter addressed to: – The Illinois State Board of Education Special Education Services,

Division100 North First Street, Springfield, Illinois 62777-0001 – See sample in manual…similar to due process request, but probably

there won’t be as much legal analysis since this is a clear legal violation.

– While ISBE will do an investigation, provide attachments and exhibits where possible

• ISBE form:– http://www.isbe.net/spec-ed/html/complaint_investigation.htm– Only fill out basic info and reference your letter

• Release signed by the education rights holder – You can use a standard release of information where the client gives

ISBE permission to release information to you (so that you can receive the results of the investigation.

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Requesting an Administrative Due Process Hearing

• Reasons to request a hearing:– To resolve a dispute “relating to the identification, evaluation or

educational placement of a child with a disability, or the provision of FAPE to the child” (34 CFR 300.507(a)(1)).

– Note that “stay put” will be in effect once the request for due process is filed.

• Statute of Limitations– 2 years from date the parent knew or should have known about

the basis for the complaint (34 CFR 300.507(a)(2)).• Who bears the burden of persuasion?

– The party bringing the action bears the burden of persuasion following the 2005 Supreme Court decision in Schaffer v. Weast.

– So don’t file when it is the District’s responsibility to do so (i.e. in response to your request for an IEE…instead file a compliance complaint to force the District to file.)

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Components of your due process request

• These required components are enumerated under 34 CFR 300.508(b)– Name of the child– Address of the residence of the child– Name of the school the child is attending– A description of the nature of the problem,

including facts– A proposed resolution of the problem

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What compensatory services can you request?

• In your request for due process, always include a request for compensatory services to “compensate” for the time in which a student was denied FAPE.– Put this in your “proposed resolution” section.

• You can be creative here…keep in mind the realities of a student’s busy schedule. Possibilities:– 1:1 tutoring– Tutoring programs– Expunging discipline records– AT referral– Related services during the summer– Summer school to which the student is not otherwise entitled– Extension of special education eligibility

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Standard Format at LAF• While the request can take different formats (i.e.

numbered “complaint” on pleading paper), LAF has traditionally done these in the form of a letter to the CEO (for CPS).– Note, however, that the 2004 IDEA reauthorization includes a

requirement of specificity in the complaint that requires a thorough understanding of the law and facts…still think of this as a formal legal document.

– Contact LAF for samples.– CC and fax or mail copies to:

• Jean Claude Brizard (hand deliver or mail certified mail/return receipt)

• Luis Rodriguez (CPS due process and mediation) or district counterpart (email courtesy copy).

• Andy Eulass (ISBE) (email courtesy copy)• Client

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Timelines

• The attorney for the school district should contact you within 15 days of receiving the due process request to try to convene a “Resolution Session” under 34 CFR 300.510. – Parent and district may mutually waive.– Parent and district may agree to Mediation in

lieu of resolution session.– Resolution session should include members

of the Team requested by the parent.

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Timelines

• Once you file, a hearing officer (HO) will be assigned and will contact you within 30 days.– As soon as your HO is assigned, make an

immediate decision about whether to have HO substituted under 105 ILCS 5/14-8.02a(f-5) as a matter of right.

– The HO will set a prehearing conference date, which will happen when the 30 day resolution period has expired.

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Timelines• The 45 day timeline for the due process hearing will start 30 days after the

district receives the due process request.– This includes the 15 day window for holding the Resolution Session.– Can start before the 30 days are up if: (see 34 CFR 300.510(c)).

• Parties waive resolution• Parties concur that agreement is not possible

– Will start with prehearing conference• Usually conducted by telephone• Must submit prehearing conference disclosure statement in advance of the call.

– LAF has samples– If you are making substantial progress toward settlement, you can probably avoid submitting

the disclosure statement…request a continuance– Final changes to your witness and exhibit lists must be finalized 5 days before

hearing.– By the end of the 45 day timeline, the hearing must have been held and a written

decision rendered by the HO.– By mutual consent, the parties can delay this timeline. (23 Ill. Admin. Code

226.640(b)(1).

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Expedited Hearings in Discipline Cases

• An “expedited” timeline will occur under 34 CFR 300.532(c) under the following circumstances involving discipline:– Where a 45 day emergency removal took

place– Where a parent is challenging a manifestation

determination

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In reality, most cases settle

• This can happen in a number of ways:– Agreement following resolution session– Agreement following formal mediation– Settlement Agreement drafted as a result of phone

and email settlement discussions conducted with opposing counsel between the time that the case is filed and the hearing.

Preparing for Hearing• Each Hearing Officer (HO) has different preferences, which are best

clarified at the PHC. Make sure you are prepared to discuss the following:– Will the child attend the hearing?– Is interpretation required?– How does the HO like to handle subpoenas?– Does the HO accept post-hearing briefs?– Does the HO prefer 2 separate exhibit packets or just one?– Will the hearing be open or closed?– Location of hearing (likely at school)– How many days do you expect the hearing to take?

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Legal OptionsCompliance Complaint vs. Due Process Hearing

• This generally turns on whether you are seeking to enforce a statutory timeline or an IEP with which you agree (CC or DP) to challenge a decision or IEP with which you disagree (DP).

• You can do both, but due process will always trump CC.

• 1 year statute of limitations for CC, 2 years for DP.• You do not have to put on a hearing or present

witnesses or evidence for a CC, only for a DP.• You can request comp ed for either.

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WHEN SPECIAL EDUCATION INTERSECTS WITH

SCHOOL DISCIPLINE OR

SECTION 504/THE ADA

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IEP vs. 504 Plan• Beware of accepting a section 504

plan as a substitute for an IEP.–Only appropriate where the

disability (diabetes, etc.) does not impact educational performance.

–AD/HD usually invokes IDEA eligibility.

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How do you convert a discipline case to a special education case?

• If student is already receiving special education services, follow the MDR process.

• If student is not yet a special education student, but parent has sent a written request to the school to have him tested that was either ignored or inappropriately declined, file due process.

• If student is not yet a special education student, but there were obvious “red flags” that should have triggered the school’s “child find” obligations, file due process.

• Ordinarily, any of the above actions will halt the expulsion proceedings until the resolution of the MDR/due process procedures/hearing.

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ADVOCACY TIPS

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Advocacy Tip: Advocating at School Meetings

• Remember that the parties will be working together for some time, so, where possible, try to preserve relationships while still getting optimal services for your client.

• Let the school take the lead if it wants to do so. Don’t take the offensive until you have cause to do so.

• Ask questions before making arguments.• Share your strategy with your client before the

meeting.

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Advocacy Tips: Advocating at School Meetings

• The federal standard is FAPE (Free Appropriate Public Education)– Appropriate, not best

• Be specific– Goals should also be measurable– If you want an individual, 1:1 aid for a student, this must be

clearly stated so that the district cannot claim that a classroom aid will suffice.

• Get everything you want somewhere in the IEP in writing.– See sample IEP worksheet in the manual

• Try not to leave without a final, approved document in hand.

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Advocacy Tip:Student not making progress

• If the lack of progress is related to academics:– Consider a full re-evaluation, even if you are before

the normal 3 year time period for re-testing.– Consider if there might be additional or different areas

of struggle not formerly tested (processing disorders, need for services like occupational therapy (OT)).

– Consider the use of Assistive Technology (AT) services to benefit the student.

– Consider an IEE. – Consider a change of placement to a more

specialized, appropriate setting.

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Advocacy Tip:Avoiding Discipline Altogether

• Try to minimize behaviors before they become problematic.– Implement the IEP– Continue to modify the IEP if behavior is a continual issue until

the concerns are addressed.• Traditional punitive measures are often counterproductive with ED

students.• Make sure appropriate related services are in place (i.e. aids, etc.)• Positive behavioral interventions should be used

– FBA/BIP– Be detailed and creative here. Don’t just identify the problem behaviors

but give positive ways to work on the behavior. Be detailed and specific. For example, consider “chunking” the day for extremely impulsive kids.

– Enlist the help of a behavioral therapist or a school social worker with special training in positive behavioral intervention.

– Consider a more restrictive placement

In sum…

• Step 1: Assess where your client is at in the process.

• Step 2: What are the legal options at this juncture? What is most advisable?

• Step 3: Is now a time to advocate with the school or to file?

• Step 4: Keep track of your timelines along the way.

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