1. ENSURING SUCCESSFUL DUE PROCESS PROCEDURES Presented by: Charles Luke, Ed.D.

2. Introduction What is Due Process? 14th Amendment No state shall make or enforce any law which s hall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any p erson of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

3. Introduction How is it interpreted in schools? Goss v. Lopez, 419 U.S. 565 (1975). Established due process for all students before disciplinary actions can take place. Due process must be at least de minimus. Buffalo ISD Due process hearing request after ARDC agrees. What now?

4. Components of Due Process Actions To Take Upon Receipt of Request for Impartial Hearing Complying With Notice Requirements Examining Essential Timing Issues Providing for the Option of Mediation How to Prepare for a Due Process Hearing Crucial Elements in an Impartial Due Process Hearing When De Novo Reviews Apply Effective Ways to Avoid Due Process Litigation

5. Applicable Law IDEA 2004 20 U.S.C. 1415 Procedural Safeguards, Due Process, Discipline, etc.

6. Actions To Take Upon Receipt of Request for Impartial Hearing ISD responds within 10 days of receiving the complaint notice with an explanation why it proposed or declined to take action complained of in hearing notice. 20 USC 1415(c)(B)(i)(I).

7. Actions To Take Upon Receipt of Request for Impartial Hearing Preliminary Meeting - Within 15 days of complaint to provide an opportunity for resolution. ARDC (IEP Team) with specific knowledge of facts identified in the complaint. Parents (may have an attorney present) District authority (may only have an attorney present if parent has one) Meeting may be waived if both parties agree. Meeting may be waived if the use of mediation is agreed upon.

8. Actions To Take Upon Receipt of Request for Impartial Hearing Written Settlement Agreement Any settlement between the parties must be written and is legally binding. May be voided within 3 days of agreement. Hearing If the LEA has not resolved the complaint within 30 days of receipt of complaint.

9. Complying With Notice Requirements A complaining party may not have a due process hearing until it files a proper notice 20 USC 1415(b)(7)(A)(i). Issues not in the notice cannot be included in the hearing. 20 USC 1415(f)(3)(B). A due process complaint notice must include: information on the child a description of the problem including supporting facts a proposed resolution. 20 USC 1415(b)(7)(A)(i).

10. Complying With Notice Requirements Process for objection to sufficiency of the notice of hearing complaint: Must be in writing to hearing officer. Must be filed within 15 days of complaint. Hearing officer must rule on objection within 5 days.

11. Examining Essential Timelines IDEA contains a two year limitation on presentation of IDEA hearing requests, unless state law has a different limit. The two-year limitation does not apply if information was withheld from parents. 20 USC 1415(f)(3)(D). Hearing deadlines start if ISD does not resolve complaint to parent's satisfaction within 30 days of receipt of the parents' complaint. 20 USC 1415(f)(1)(B)(ii).

12. Providing for the Option of Mediation SEAs are required to provide procedures for mediation. Procedures must meet the following requirements: Voluntary on the part of both parties. Not used to deny or delay a parents right to a due process hearing or any other rights. Conducted by a qualified and impartial mediator who is trained in effective mediation techniques. Be timely scheduled and located convenient to both parties.

13. Providing for the Option of Mediation SEAs will: Maintain a list of qualified mediators Bear the cost of the mediation process SEAs may provide an opportunity to meet with a disinterested party Under contract with a parent training and information center. Under contract with an appropriate dispute resolution entity.

14. Providing for the Option of Mediation District and parents must meet to discuss parents' complaint within 15 days after complaint is received. 20 USC 1415(f)(1)(B)(i)(IV). May include representative with decision making authority. 20 USC 1415(f)(1)(B)(i)(II). Members of the IEP team with knowledge of facts must participate in mediation. 20 USC 1415(f)(1)(B)(i)(II). ISD may not have lawyer unless parent bring attorney 20 USC 1415(f)(1)(i)(III).

15. Providing for the Option of Mediation If parties reach agreement, they must reduce to writing, that can be rejected by either party within three business days. 20 USC 1415(F)(1)(B)(iii-iv). If agreement is not reached at mediation, ISD may attempt to resolve the complaint up to 15 days after the session. If parents refuse to participate in resolution meeting, the due process hearing is postponed until the session is held. 34 CFR 300.510(b)(3). If still refuse, ISD may ask for dismissal. 34 CFR 300.510(b)(4).

16. How to Prepare for a Due Process Hearing Read the complaint. It is frequently poorly drafted, even by lawyers. If so, file special exceptions to the complaint and demand to know the specific IDEA claim asserted and relief requested. Move to dismiss any claim not under IDEA or otherwise flawed. Insist that unrepresented parents follow the basic hearing rules. Prepare disclosures early dont wait for deadline. Do not count on a settlement and neglect preparing disclosures. At prehearing conference, be sure to set dates and reach agreements on deadlines, filings, and discovery.

17. Crucial Elements in an Impartial Due Process Hearing Were all procedural safeguards in place and followed? Examination of Records? Parental participation and rights? Written prior notices followed for initiation of change, refusal to initiate change, identification, evaluation or placement? In native language of parents? Mediation opportunity? Complaint opportunity? Annual notice of procedural safeguards?

18. Crucial Elements in an Impartial Due Process Hearing Have all timelines been met satisfactorily? Has IEP been followed? Has student been dealt with according to proscribed legal and administrative guidelines? Do you have a meritorious claim?

19. When Do De Novo Reviews Apply? De Novo review to review the case as if it is being heard for the first time. The standard for judicial review of Impartial Hearing Officers (and indeed lower courts) has been historically: Presumptive deference for the IHOs findings of fact. De novo review for the IHOs legal conclusions. (Legal error doctrine). (NASDSE, 2010).

20. Effective Ways to Avoid Due Process Litigation Use mediation. Mediation must be offered. 34 CFR 300.506(a). It can be offered even before due process complaint has not been filed. Mediation must be by an impartial and trained mediator who is knowledgeable in special education law. 34 CFR 300.506. Use facilitated IEP team meeting, to assist the parents and ISD to focus on student needs and avoid miscommunication.

21. Effective Ways to Avoid Due Process Litigation Continue to communicate with parents even after due process requested. Respond fully to due process complaint. Seek assistance of hearing officer in channeling the parties to mediation or facilitated IEP team meeting. Facilitate ongoing parental involvement and foster strong relationships with parents of special needs kids.

22. References Goss v. Lopez, 419 U.S. 565 (1975). IDEA 2004 20 U.S.C. 1415 Procedural Safeguards, Due Process, Discipline, etc. Zirkel, P. (2010). Impartial hearings under the IDEA: Legal issues and answers. National Assn. of State Directors of Special Education: Alexandria, Va.

23. Contact Information charlesluke43@gmail.com www.charlesluke.weebly.com