MAASE Winter Conference - 2017 resolving IDEA disputes Presenter: Robert A. Lusk Lusk Albertson PLC (248) 988-5662 RLUSK@LUSKALBERTSON.COM February 8, 2017 Providing Legal Solutions, So Teachers Can Teach and Students Can Learn.

Introduction Focus on IDEA ADA & Section 504 Disputes Two Kinds of IDEA Disputes Informal Disputes Formal Disputes State Complaints Due Process Hearings

The Gold Standard – No Dispute Avoid Mistakes Train, Train and Re-train Take Child-First Approach Build Communication and Trust

Informal Disputes Definition – For Our Purposes: Concerning an IDEA-eligible student: a request from the parent the District refuses or a proposal from the District the parent rejects. Response – Prior Written Notice (PWN)

Prior Written Notice (PWN) Applies to More Than REEDs, IEPs and MDRs Two Examples Parental Request to Review Private IEE Parent Request for Amend Existing IEP Six Elements of PWN Action proposed or refused; Explain why proposed or refused; Each evaluation procedure, assessment, record or report supporting District decision;* Direct to procedural safeguards; Other options considered; and, Other relevant factors.* Tools for Communicating PWN

State Complaints, Generally IDEA Requirements: Each SEA must have a state complaint procedure that: Provides for filing a complaint with SEA; and, At SEA’s discretion: Provides for filing with a public agency; and, Review of public agency’s decision by SEA Requirements of Michigan Law, MCL 380.1711(1)(h) ISDs must investigate and resolve state complaints. Issue written findings. Michigan Law is Consistent with Federal Law

State Complaints, Recent Changes MDE is Investigating All State Complaints Given Reason – Conflict of Interest Metropolitan v Rural ISDs Provision of State Law Addresses Issue ISD Personnel Tagging Along What About Michigan Law? Is There Another Reason? MDE is Ruling on Substantive FAPE Issues Former Practice – Defer Substantive Issues to Due Process Substantive FAPE Issues Identification, Placement, LRE MDR, ESY, Etc. Is this Legal? Pros and Cons Speed and Expense Increased Probability of Error and Abuse, Both Ways Centralization of Power & Authority

Are There Options? District May Initiate Due Process Hearing Sometimes Required To Deny IEE Request To Override Parental Refusal to Consent to Evaluate Always an Option, 34 CFR 300.507(a)(1) Effect of Filing Due Process MDE Guidance Dear Colleague Letter from OSEP, April 15, 2015 Two Problems* Acknowledges District’s Right to File Due Process Not Legally Binding, 20 USC 1406(d) and (e) Upshot

Dear Colleague Letter (4/15/15) “A parent or a public agency may file a due process complaint on any matter relating to the identification, evaluation, or educational placement of FAPE to the child.” “If a complaint is received that is also the subject of a due process hearing the state must set aside any part of the state complaint that is being addressed in the due process hearing until the hearing officer issues a final decision…” “We question why a public agency would seek a due process hearing when there is already an active state complaint on the same issue ….”

State Complaints, Procedure Process Complaint Filed MDE Appoints MDE Investigator ISD Investigators May Tag Along MDE Investigator Reviews Paperwork May Conduct Interviews MDE Issues Decision Appeals Circuit Court DPH?

Due Process Hearings Procedure Appeal to Federal or State Court Complaint Filed Administrative Law Judge (ALJ) Appointed Qualifications Independent – Not Employed by MDE Issues Clarified Hearing Exhibits Entered Witnesses Testify – Educators, Parents & Experts Rules of Evidence Transcript ALJ Decision Appeal to Federal or State Court

Avoid Legal Disputes, Pre-Filing Strategies Leadership Manage Up Manage Down Train, Train & Retrain Legal Issues General Compliance Specific People Issues Students Parents

Avoid Legal Disputes, Post-Filing Mutual Agreements Resolution Sessions Mediation Offers of Settlement Private Agreements* Otherwise – Someone Else Decides

Resolution Sessions Procedure Substance Practical Advice

Resolution Sessions, Procedure Timeline Within 15 Calendar Days of Receiving DPC Mandatory, Unless Waived in Writing or Agreement to Mediate Not Required if District Initiated DPH Attendees Parent(s) School District Personnel Knowledgeable IEP Members District Representative with Decision-Making Authority Attorney?

Resolution Sessions, Substance Attempt to Resolve DPC Resolve by Discussion Confidentiality of Discussion Confidentiality Agreement? Enter Into Legally Binding Agreement, Enforceable by SEA or Court Content of Agreement Drafting Agreement Three Day Revocation Period

Resolution Sessions, Practical Advice Consult with Your Attorney in Advance Consider Parameters of Potential Agreement Consider Preparing Form of Agreement At Resolution Session Be Prepared to Listen Constructively Be Prepared to Propose and Document Resolution Be Prepared to Take Notes Be Prepared to Meet Again

Mediation Substance Procedure Practical Advice Similar to Resolution Session One Important Difference – Mediator Consider Training Consider Track Record Procedure Practical Advice

Mediation, Procedure You Can Mediate Anytime Before, During and After DPH Doesn’t Toll DPH Timelines Anyone Can Serve as Mediator SEA List Pick Your Own Mediator You Can Bring An Attorney Attorney Doesn’t Have to Lead Discussion Attorney Should Draft Agreement - Enforcement Mediation is Voluntary Mediation is Confidential Mediation Agreement Enforceable in Federal Court

Mediation, Practical Advice Educate Parents and Staff About Mediation Mediate Freely Don’t Wait for a Formal Legal Dispute

Offers of Settlement In DPH Purpose – Narrow Issues & Reduce Attorney’s Fees Rule Timing Practical Advice

Private Agreements Settlement Agreements Resolve Special Education Case Resolve Other Types of Cases Recent Restrictive MDE Decision Holding Rationale Unintended Consequences (Potential)

MDE Decision Facts Ruling Placement Dispute Agreement with Parent Trial Placement Return from Trial Placement Ruling Agreement not Enforceable Rationale What is not Specifically Permitted by IDEA is Prohibited IDEA Specifically Allows Resolution Session and Mediation Agreements Placement Agreements not Specifically Permitted

Critique of Decision Not Consistent with Law Rule – Can Enter Into Agreements Modifying Rights Certain Laws Prohibit Agreements (i.e., FLSA) Most Laws Do Not IDEA Does Not Pretty Simple Work Around - Mediation

Winding Up Overview Available Tools What Needs to be in Agreement PWNs Resolution Sessions Mediations Offers of Settlement Settlement Agreements? What Needs to be in Agreement Ideally – Agreement will be Custom Tailored Common Essential Elements

Essential Elements Identify Parties and Dispute Reciprocal Promises The District Will … (Be Precise) The Parent Will …. Dismiss (or not file) State Complaint or DPH Release & Indemnify District Integration Clause Amendments Legal Advice on Essential Elements

QUESTIONS Robert A. Lusk Lusk Albertson PLC 409 E. Jefferson, 5th Floor Detroit, MI 48226 (248) 988-5662 rlusk@luskalbertson.com