Preparing for a Due Process Complaint: You’ve Been Served! Now What?

Preparing for a Due Process Complaint: You’ve Been Served! Now What?
Jennifer Mauskapf , Esq Monica Munin, Esq.

Brustein & Manasevit, PLLC © 2018. All rights reserved.
Legal Resources IDEA Website - Code of Federal Regulations: 34 CFR Part 300 idx?tpl=/ecfrbrowse/Title34/34cfr300_main_02.tpl Brustein & Manasevit, PLLC © All rights reserved.

Due Process Complaints
Allow parents/students to enforce the rights guaranteed under the IDEA. Relate to refusal or denial to initiate or change the identification, evaluation, educational placement of the provision of a free appropriate public education (FAPE). Each SEA must establish and maintain due process procedures. 34 CFR Brustein & Manasevit, PLLC © All rights reserved.

Standard Due Process Complaint Timeline
* Brustein & Manasevit, PLLC © All rights reserved.

Resolution Meetings Must occur within 15 days of notice of complaint. Attorney for the LEA cannot attend unless parent’s attorney is also present If the LEA is unable to obtain the participation of the Parent, the LEA may request that the hearing officer dismiss the parent’s due process complaint! Meeting notes are not confidential 34 CFR (a) Brustein & Manasevit, PLLC © All rights reserved.

Mediation Not limited to issues raised in due process hearing; may mediate any point in the dispute Mediation is CONFIDENTIAL! LEA cannot require mediation [ED does] not believe that a hearing officer can order that the parties to a due process complaint engage in mediation.” (71 Fed. Reg (Aug. 14, 2006)). Brustein & Manasevit, PLLC © All rights reserved.

Hearing Officer Determinations
Courts have broad discretion in fashioning relief for violations of the IDEA. Burlington Sch. Comm. v. Dept. of Educ., 471 U.S (1985) Hold meetings Evaluations Placement Private Schools Residential Compensatory Education Brustein & Manasevit, PLLC © All rights reserved.

Prevailing Party Status
Requires “some judicially sanctioned change” in the legal relationship of the parties Judgement on the merits Court-ordered consent decree Does not include a defendant’s voluntary change in conduct or a settlement agreement Brustein & Manasevit, PLLC © All rights reserved.

Fact Pattern Amelia has enrolled at your LEA for the first time Brandon, attorney on behalf of Amelia and her mother, calls your special education coordinator to request a meeting At the meeting, Brandon explains that Amelia’s previous LEA was untrustworthy and tells the team that he has concerns regarding whether or not Amelia’s disability classification, ID, is correct. To shed light on the issue Brandon requests an FBA Brustein & Manasevit, PLLC © All rights reserved.

Fact Pattern (continued)
Your team spends a great deal of time explaining that an FBA is not generally conducted for the purposes of clarifying a student’s disability classification, but ultimately agrees that more testing to determine the student’s disability classification is required. Your special education coordinator states that a comprehensive psychological evaluation would help the team determine whether or not Amelia’s disability classification is correct. Brustein & Manasevit, PLLC © All rights reserved.

As part of the comprehensive psychological evaluation, your special education coordinator schedules a telephone interview with Amelia’s mother for the following week. At the end of the meeting your team issues a prior written notice stating that Brandon requested an FBA and that the special education coordinator would order a comprehensive psychological evaluation be performed on Amelia’s behalf. When the evaluator calls Amelia’s mother at the scheduled date and time, Amelia’s mother does not pick up. The evaluator tries calling back but does not leave a voic when Amelia’s mother doesn’t answer. A month passes, Amelia is doing well in school. Brustein & Manasevit, PLLC © All rights reserved.

At the end of the month your LEA is served with a due process complaint Brandon has filed alleging a failure to reevaluate the student. What do you do? Brustein & Manasevit, PLLC © All rights reserved.

Discussion Questions:
Did the LEA violate the IDEA in this scenario? Would you settle this case? How could the LEA have better protected itself? Brustein & Manasevit, PLLC © All rights reserved.

Prior Written Notice 34 CFR §300.503
Must be given to parents if the LEA proposes or refuses to initiate or change the following: Evaluation of a child, Identification of a child, Educational placement of a child, or Provision of FAPE to a child. Notice must include: reasons for action or refusal and available procedural safeguards Brustein & Manasevit, PLLC © All rights reserved.

Amelia’s Fact Pattern (continued)
The LEA decides to fight this due process complaint, at 5:00pm the day before the hearing is scheduled, Brandon withdraws his complaint Is the LEA the “Prevailing Party?” Brustein & Manasevit, PLLC © All rights reserved.

Amelia’s Fact Pattern (continued)
If the LEA had filed a motion for summary judgment and it was granted, has the LEA obtained prevailing party status? Is prevailing party status enough for an LEA to recover attorney’s fees? Brustein & Manasevit, PLLC © All rights reserved.

Attorneys’ fees Can be awarded to LEAs / SEAs as prevailing party Against attorney of parent If complaint is frivolous, unreasonable, without foundation; OR If attorney of parent continued to litigate after clearly became frivolous Against attorney of parent or parent Improper purpose (harass, cause unnecessary delay, needless increase cost of litigation) 34 CFR Brustein & Manasevit, PLLC © All rights reserved.

Consider this… Jackson County School Board v. Palmer, 66 IDELR 127 (N.D. Fla. 2016) Parent filed a due process complaint LEA cancels a previously scheduled IEP meeting after receiving the due process complaint Parent files a second due process complaint challenging the school’s decision to cancel the IEP meeting. The court found that the complaint did not have an improper purpose. Brustein & Manasevit, PLLC © All rights reserved.

How much success amounts to “prevailing party status?”
Even small victories are enough Courts have held that parents are prevailing parties even where a hearing officer ruled that a child received FAPE. The basis of the decision was that parents had been able to successfully obtain a change in their child’s disability classification. (Weissburg v. Lancaster School District, 53 IDELR 249 (9th Cir. 2010)). Brustein & Manasevit, PLLC © All rights reserved.

Compensable Activities
LEAs are not responsible for parents’ attorneys’ fees for: Attending Resolution Meetings Attending IEP Meetings (unless ordered by Hearing Officer) Educational Advocates (Lay Witness) (Fed Regs comments) Expert Fees (Arlington Central School District v. Murphy) Brustein & Manasevit, PLLC © All rights reserved.

What else can you do to cut down on fees?
Brustein & Manasevit, PLLC © All rights reserved.

Attorney’s Fees after Offer of Settlement 34 C.F.R. 300.517(c)(2)(i)
Attorneys' fees may not be awarded and related costs may not be reimbursed in any action for services performed subsequent to the time of a written offer of settlement to a parent if-- The offer is timely made (generally, 10 days before the proceeding begins, check state rules); The offer is not accepted within 10 days; and The court or administrative hearing officer finds that the relief finally obtained by the parents is not more favorable to the parents than the offer of settlement. Brustein & Manasevit, PLLC © All rights reserved.

Attorney’s Fees after Offer of Settlement 34 C.F.R. § 300.517(c)(2)(i)
Do you have to offer attorney’s fees for a settlement offer to toll fees? Brustein & Manasevit, PLLC © All rights reserved.

What to do when a Child is Disciplined
ASK: Is the child identified as a child with a disability? If no, generally IDEA protections do not apply (34 CFR (d)) If yes…. Brustein & Manasevit, PLLC © All rights reserved.

What to do when a Child is Disciplined
ASK: Does the discipline constitute a “change in placement?” (34 CFR ) Brustein & Manasevit, PLLC © All rights reserved.

When is a removal a change in placement?
A Removal is a Change in Placement when: (34 CFR § ) Exceeds 10 consecutive school days Series of short-term removals that are a pattern Brustein & Manasevit, PLLC © All rights reserved.

When is a removal a change in placement?
Special Circumstances 45-day removal – drugs, weapons, serious bodily injury to another (34 CFR § (g)) Hearing officer removal - 45-day removal requested by LEA through due process b/c substantially likely to injure self or others in current placement (34 CFR § ) Parent Notification (34 CFR § (h)) Brustein & Manasevit, PLLC © All rights reserved.

When is a removal NOT a change in placement?
A Removal is NOT a Change in Placement When: (34 CFR § ) 10 consecutive school days or less Series of short-term removals that are not a pattern (even if greater then 10 days) Determined by the public agency, but subject to review through due process (34 CFR § (a)(2)) (a) Length of each removal; (b) Total time removed; (c) Proximity of removal; (d) Behavior not substantially similar; etc. Brustein & Manasevit, PLLC © All rights reserved.

How do you proceed after determining whether there has been a change in placement? No: Done (document decision) (possible exception 34 CFR § (d)(4)) (Interim Services) Yes: Manifestation Determination (34 CFR § (e)); Functional Behavior Assessment; and Behavior Intervention Plan (34 CFR § (d)(1)(ii), (f)(1)(i)) Brustein & Manasevit, PLLC © All rights reserved.

A Manifestation of the Child’s Disability? 34 CFR §§ 300.530 – 300.536
Decided By IEP Team No – Stay Put does not apply (300 CFR § (c)) Yes – Manifestation Determination (300 CFR § (f)) Stay Put: Child Remains in School Discipline cannot proceed Exceptions 45-Day Removal Brustein & Manasevit, PLLC © All rights reserved.

Pop Quiz! 45-day removal – drugs, weapons, serious bodily injury to another (34 CFR § (g)) What do the terms “weapons,” and “serious bodily injury” mean under the IDEA? Brustein & Manasevit, PLLC © All rights reserved.

Pop Quiz! Paraprofessional suffered discomfort, disorientation, and pain that she rated 7 on a scale of one to 10 after being hit by a student She returns to school the next day Serious bodily injury? Bisbee Unified School Dist. No. 2, 54 IDELR 39 (SEA AZ 2010) Brustein & Manasevit, PLLC © All rights reserved.

Pop Quiz! Student with a disability punches another student in the face and breaks his nose, is this serious bodily injury? Pocono Mountain Sch. Dist., 109 LRP (SEA PA 12/12/08) Brustein & Manasevit, PLLC © All rights reserved.

Serious Bodily Injury Bodily injury which involves substantial risk of death; extreme physical pain; protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty. 18 U.S.C. 1365(h)(3) Brustein & Manasevit, PLLC © All rights reserved.

Pop Quiz! A student brings a cigarette lighter that includes a three inch blade into his school building. Is the cigarette lighter a weapon? Chester Upland Sch. Dist., 35 IDELR 104 (SEA PA 2001) Brustein & Manasevit, PLLC © All rights reserved.

Weapon Defined “A device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than 2.5 inches in length” 34 CFR (i)(4) Brustein & Manasevit, PLLC © All rights reserved.

Was the behavior a manifestation of the child’s disability?
Change of Placement? No: Done (document decision) (possible exception 34 CFR § (d)(4)) (Interim Services) Yes: Manifestation Determination (34 CFR § (e)); Functional Behavior Assessment; and Behavior Intervention Plan (34 CFR § (d)(1)(ii), (f)(1)(i)) Brustein & Manasevit, PLLC © All rights reserved.

A Manifestation of the Child’s Disability? 34 CFR §§ 300.530 – 300.536
Decided By IEP Team No – Stay Put does not apply (300 CFR § (c)) Yes – Manifestation Determination (300 CFR § (f)) Stay Put: Child Remains in School Cannot continue discipline Exceptions 45-Day Removal Brustein & Manasevit, PLLC © All rights reserved.

Fact Pattern Billy is eligible for IDEA services under the disability classification HI-hearing impairment While at school, Billy displays disturbing and violent behaviors, throwing desks through windows, attacking other students, etc. The situation is so severe that the school repeatedly has to evacuate other students from the classroom until they can calm Billy down. Brustein & Manasevit, PLLC © All rights reserved.

Protections for Children Not Determined Eligible for Special Education and Related Services 34 CFR (a)-(b) WHERE: Parent expressed in writing that child had need for special education Parent requested an evaluation School personnel expressed specific concerns to the director of special education or other supervisory personnel Brustein & Manasevit, PLLC © All rights reserved.

Protections for Children Not Determined Eligible for Special Education and Related Services 34 CFR § (a)-(b) HOLD MDR and determine if discipline will amount to a change in placement EXCEPTION: 34 CFR (c) These protections do not apply to a child whose parent has refused consent for an evaluation or consent for services, nor does it apply to a child evaluated and determined not to be a child with disabilities Brustein & Manasevit, PLLC © All rights reserved.

Fact Pattern George is a 16 year old child eligible for IDEA services under the VI classification. George also has an ADHD diagnosis, but is not eligible for services under the IDEA as a result of this diagnosis. The school nurse ensures that George takes his ADHD medication every morning upon arriving to school. Brustein & Manasevit, PLLC © All rights reserved.

George has a low frustration tolerance and will lash out whenever he feel threatened. Though these instances are rare, in the past he has made threats against other students and teachers. Despite this, George does well in school and does not have a lot of behavioral instances. Brustein & Manasevit, PLLC © All rights reserved.

One day, George yells out, in the middle of the lunch room, that he intends to shoot up the school. He tells everyone in the room that he has a gun in his backpack at all times and it’s only a matter of time. Brustein & Manasevit, PLLC © All rights reserved.

Investigation reveals that George did not actually bring a gun to school. The incident causes an uproar among the school community and three students withdraw from the school. The school immediately suspends George pending the results of an MDR. The school holds an MDR and finds that the incident is not a manifestation of George’s visual impairment and expels George. Discussion Question 1: Is the incident a manifestation of George’s disability? Brustein & Manasevit, PLLC © All rights reserved.

George’s parents file a due process complaint challenging the outcome of the MDR. They allege that the behavior was a manifestation of George’s ADHD. The parents of other students have been calling the school administration demanding to know whether or not George would return and what the school has done to address the incident The school informs George that he may not return to the school under any circumstances. Brustein & Manasevit, PLLC © All rights reserved.

Discussion What are George’s rights while suspended? What are George’s rights once expelled? What is the school’s exposure? How could the school limit its exposure moving forward? What steps could the school have taken before the incident to protect itself? Brustein & Manasevit, PLLC © All rights reserved.

Are services required? Are services required? If not a change of placement: MAYBE 10 day rule: no services required for first 10 school days of disciplinary removal in school year LEA can always decide to provide services even when not required “So as to enable the child to continue to participate in the general education curriculum, although in another setting, and progress toward meeting goals in child’s IEP” Brustein & Manasevit, PLLC © All rights reserved.

Are services required? If a change of placement: YES (34 CFR § (d)) IEP team decides on services (allow child to continue to participate in general education curriculum, although in another setting and progress on IEP); services mandatory Brustein & Manasevit, PLLC © All rights reserved.

Stay- Put Provision Prohibits an LEA from changing a student’s placement while a proceeding involving a due process complaint is pending unless the school district and the parent mutually agree on another placement Only applies when a parent has requested a due process hearing May apply to a request for mediation (This is a matter of state law) Brustein & Manasevit, PLLC © All rights reserved.

Legal Disclaimer This presentation is intended solely to provide general information and does not constitute legal advice or a legal service. This presentation does not create a client-lawyer relationship with Brustein & Manasevit, PLLC and, therefore, carries none of the protections under the D.C. Rules of Professional Conduct. Attendance at this presentation, a later review of any printed or electronic materials, or any follow-up questions or communications arising out of this presentation with any attorney at Brustein & Manasevit, PLLC does not create an attorney-client relationship with Brustein & Manasevit, PLLC. You should not take any action based upon any information in this presentation without first consulting legal counsel familiar with your particular circumstances. Brustein & Manasevit, PLLC © All rights reserved.

Preparing for a Due Process Complaint: You’ve Been Served! Now What?

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Preparing for a Due Process Complaint: You’ve Been Served! Now What?

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