1. ADVANCED ADVOCACY: IEPS AND DISPUTE RESOLUTION
Devon Rios Barellano, Esq.
Specializing in special education law and litigation
Elizabeth Eubanks, Esq.
Inland Empire Regional Director, Disability Rights Legal Center

2. Disclaimer
This presentation is for general information and educational purposes only, nothing should be construed as specific advice regarding your individual legal issue or case nor does it rise to the level of an attorney-client relationship.

3. Presentation Overview
Today we will cover:
Legal standard for special education and related services
Strategies in representing students with special education needs
Tools to resolve conflicts
Common areas of disagreement
Evaluating dispute resolution options

4. Individuals with Disabilities Education Act
Federal law that provides for special education and related services for eligible students with disabilities.
The State must make a free appropriate public education (FAPE) available to all resident children between the ages of 3 and 21, including children with disabilities who have been suspended or expelled from school. ee

5. Special Education Defined
Statutory Definition: “specially designed instruction, at no cost to the parent, to meet the unique needs of individuals with exceptional needs, including instruction conducted in the classroom, in the home, in hospitals and institutions, and other settings, and instruction in physical education.” Cal. Educ. Code § 56031; see 20 U.S.C § 1401(29). Should be in the least restrictive environment. ee

6. Two types of Legal Rights:
Procedural
An opportunity to:
Examine records
Participate in meetings
Obtain an IEE
Prior Written Notice whenever the District proposes or refuses to initiate/change the identification, evaluation, or educational placement of the child or the provision of FAPE.
Notice to parents in their native language
Substantive
Free Appropriate Public Education
All children between 3-21
Appropriate = reasonably calculated to enable the child to receive educational benefits.
Not “best” education ee

7. Individualized Education Plan (IEP)
ALWAYS START HERE – present the issues/concerns to the IEP Team
A “cooperative” process between parents and schools.
The school district must provide a written offer of FAPE- A comprehensive statement of the educational needs of a child with a disability and the specially designed instruction and related services a district will employ to meet those needs.
In creating an IEP, the District must follow the procedural safeguards. ee

8. Components of an IEP:
A statement of the child's present levels of academic achievement.
A statement of measurable annual goals, including academic and functional goals.
A description of how the child's progress toward meeting the annual goals will be measured and when periodic reports on the child's progress toward meeting the annual goals (such as through the use of quarterly or other periodic reports, concurrent with the issuance of report cards) will be provided.
A statement of the special education and related services and supplementary aids and services to be provided to the child.
An explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular class and in the extracurricular or other nonacademic activities.
A statement of any individual appropriate accommodations that are necessary to measure the academic achievement and functional performance of the child on statewide and districtwide assessments.
The projected date for the beginning of the services and modifications along with the anticipated frequency, location, and duration of those services and modifications. ee

9. Requesting a new IEP
Parents have the right to request an IEP meeting at any time (Cal. Educ. Cod §§ 56343, )
School district must convene an IEP meeting to discuss lack of expected progress (Cal. Educ. Code § (d)(1))
School district must convene meeting 30 days after parents’ request (Cal. Educ. Code § )
School districts are not required to convene IEP meetings during winter, spring, or summer breaks ee

10. Do I ask for Another IEP or Am I Ready for Dispute Resolution?
IEP/Evaluation Request:
Requests for changes are not clear
Needs are not established or discussed
Assessments pending
Dispute Resolution:
Do you know what you are requesting?
Can You support it?
Do you understand the legal standard/likely outcome?
Is your client prepared (mentally, organizationally and with proper support) to go as far as necessary to have the needs met? ee

11. Negotiation Definition
“Bargaining (give and take) process between two or more parties (each with its own aims, needs and viewpoints) seeking common ground to reach an agreement to settle a matter of mutual concern or conflict” ( How does this definition apply to resolving special education disputes?

12. Pre-filing ADR Informal Largely unregulated No procedural safeguards
Issues to consider:
Who will be there?
Will you be negotiating a settlement agreement or IEP terms?

13. Enforcement if you Informally Resolve?
California Department of Education enforces mediated settlement agreements—not contracts outside the process.
Are you prepared to enforce in state court, if necessary?

14. Pre-filing Mediation
Office of Administrative Hearings will provide a mediator at no cost.
Should be impartial
ATTORNEYS OR OTHER “INDEPENDENT CONTRACTORS” MAY NOT ATTEND
Issues to consider:
Balance of power if your client attends unrepresented

15. State Complaint California Department of Education State Complaint
Address:
Complaint Management and
Mediation Unit
Special Education Division
California State Department of
Education
1430 N. Street, Suite 2401
Sacramento, CA 95814
Telephone: (916) or
1 (800)
Fax: (916)
State Compliance Complaint
California Department of Education
State Complaint
CDE must investigate all complaints
State complaint used mainly for procedural errors
See 5 C.C.R. §§ 4600 et seq. sp
1-15

16. Office of Civil Rights Discrimination Complaint
Office of Civil Rights (OCR)
Federal Complaint
OCR does not have to investigate all complaints
OCR complaint used mainly for allegation of discrimination
Address:
Office of Civil Rights Region IX
U.S. Department of Education
Old Federal Building
50 United Nations Plaza, No. 329
San Francisco, CA 94105
Telephone: (415) 

Fax: (415) 

TDD: (415)

17. Due Process Filing Administrative forum
Governed by the Office of Administrative Hearings
Attorneys/advocates can and often are present
Trial-like environment
Evidence
Witnesses
Administrative law judge a.k.a Hearing Officer
Right to appeal
Right to recover attorneys’ fees *
Stay Put

18. When to file for Due Process
When there is a disagreement between you and the school over what is a Free and Appropriate Public Education (FAPE)
Implementation
Eligibility
Assessments
Changes to IEP without your approval and/or
Placement
District takes parent/educational rights holders to due process

19. Due Process Timeline
Parent must file within 2 years from the time parent knew or should have known of the injury or event
School district must answer complaint within 10 days of filing (PWN)
Resolution meeting must be held within 15 days of filing the complaint
Mediation within 30 days of filing the complaint
Hearing must be set within 45 days after the 30 days to resolve [75/45]
Appeal to state or federal court within 90 days of Order

20. Legal Standard and Basic Procedures
Burden of proof –is on the moving party
Most of the time the parent bears the burden of proof to show a denial of FAPE
Evidence
At least 5 business days prior to the hearing, each party must disclose evidence that they plan to use at the hearing (34 C.F.R. § (b)(1))

21. Remedies
Compensatory Education - equitable remedy to make up for education lost due to district violation of FAPE
Reimbursement – for parents that have paid to provide FAPE
To decide any issue of FAPE (placement, related services, least restrictive environment)
Prevailing Party Status – as to each issue ee

22. Common Settlement Terms
Substance: Do you know exactly what you are being offered. (some examples)
What are you giving up in exchange for what you are getting?
Just the narrow disputed issue?
All educational disputes?
Legal rights beyond special education?
For how long are you giving these things up? ee

23. Sample Waiver Language Current Issue only
“Student waives all claims related to students speech and language services from January 28, 2013 to date of full execution of this agreement”
What are you giving up?
What is the time frame? ee

24. Sample Waiver Language
Time Frame?
Areas? ee

25. Questions?

26. Contact Information
Devon Rios Barellano
Law Office of Devon Rios Barellano
Special Education Law and Advocacy
12227 Philadelphia Street
Whitter CA 90601
(562)
Elizabeth Eubanks
Disability Rights Legal Center
At University of La Verne College of Law
320 East D. Street
Ontario, CA 91764
(909)
DisabilityRightsLegalCenter.org