HOW TO ‘WIN’ SPECIAL EDUCATION CASES Lusk & Albertson, PLC

Overview The Title The Presenter The Presentation –Formal Dispute Resolution Processes –Problems with Formal Dispute Resolution –Dispute Prevention –Informal Dispute Resolution Opportunities The Challenge Lusk & Albertson, PLC

Part 8 Complaints Part 8 of What? R – 1855 Complaint Form (MDE Web Site) –Who are You? –What Happened? –What Do You Want? Formal Dispute Resolution

Part 8 Complaints Part 8 Procedures –Filing Part 8 Issues - Compliance 1 Year Limitation Period –Investigation Investigator Opportunity for Informal Dispute Resolution Duty to Cooperate 60 Calendar Days for Final Decision Reconsideration Formal Dispute Resolution

Part 8 Complaints Part 8 Procedures –Final Decisions No Violation Corrective Action and Proof of Compliance –Assurance of Future Compliance –Compensatory Education –Potential Sanctions Withhold Funding or Withhold Credentials, Authorizations, Etc. File a Civil Action Compelling Compliance –Appeals Formal Dispute Resolution

Thoughts on Part 8 Fairly Efficient and Predictable Reasonably Painless Formal Dispute Resolution

Thoughts on Due Process Complaints Time Consuming and Expensive Psychologically Painful Formal Dispute Resolution

Due Process Complaints Complaint Form (MDE Web Site) Filing –Due Process Issues, Typically: Procedural Issues (Compliance) Placement Issues MDR Issues –Two Year Limitations Period Formal Dispute Resolution

Due Process Complaint Procedures Pre-Hearing Conference –Scheduled by ALJ (Timing) –Agenda Identify Issues Determine Hearing Dates and Locations Address 5-Day Rule Open or Closed Address Other Procedural Issues Formal Dispute Resolution

Due Process Complaint Procedures Pre-Hearing Legal Practice –Address Sufficiency of Complaint –Respond to (Answer) Complaint –Move to Dismiss Non-Hearable Claims Claims Under Other Laws (E.g., Section 504) Claims Related to Identity of Service Providers Formal Dispute Resolution

Due Process Complaint Procedures Resolution Session* –Mandatory –15 Days of Receiving Notice of Complaint –Participants Parents and Relevant Staff Attorneys? Formal Dispute Resolution

Due Process Complaint Procedures Pre-Hearing Preparation –Locate Potential Exhibits –Identify Potential Witness –5-Day Rule Compliance –Prepare District’s Witnesses –Prepare for Opposing Witnesses Formal Dispute Resolution

Due Process Complaint Procedures Hearing –Hearing Participants –Hearing Order Opening Statements Parents’ Case-in-Chief District’s Case-in-Chief Rebuttal Closing Argument or Post-Hearing Briefs Formal Dispute Resolution

Due Process Complaint Procedures Hearing –Hearing Participants –Hearing Order Opening Statements Parents’ Case-in-Chief District’s Case-in-Chief Rebuttal Closing Argument or Post-Hearing Briefs Formal Dispute Resolution

Due Process Complaint Procedures ALJ Decision and Order –In District’s Favor –Against District, in Whole or Part Legal and Other Consequences Formal Dispute Resolution

Due Process Complaint Procedures Appeals –Trial Court (State or Federal) File Complaint Additional Evidence –Court of Appeals –Supreme Court Formal Dispute Resolution

Financial Cost $10,000 Per Hearing Day (Conservative) –Your Attorney –75% Cost of Hearing Appeals Cost More Problems with Due Process Hearings

Time Cost Administrative Time Staff Time Problems with Due Process Hearings

Psychological Cost Staff Stress Parent Stress Student Stress Problems with Due Process Hearings

You Might Lose The Case Warning Signs –Adult Issues on School Side –Procedural Errors –Poor Student Progress Vis-à-vis Reasonable Expectations No Clear Path to Success Losing –Increases Financial, Time and Emotional Costs –Makes You Vulnerable Problems with Due Process Hearings

Staff Training Special Education Staff –Reminders of Fundamentals –Updated on Latest Developments General Education Administrators –Same as Special Education Staff –Importance of Accountability General Education Staff –Must Train and Secure Buy-In –Must Hold Accountable Dispute Prevention

Staff Attitude Caring Positive Realistic Dispute Prevention

Staff Evaluation Instruments Prohibited Subject of Bargaining Importance of Evaluation Results 50% Based on Student Achievement Other 50% Should Include Legal Compliance Dispute Prevention

Recognize The Warning Signs Chronic Behavioral Issues Parental Belligerence Parental Dishonesty Reluctance to Cooperate Advocates and Attorneys IEE Requests Refusal to Consent to Evaluations Part 8 and OCR Complaints Dispute Prevention

Reacting to Warning Signs Frankly Evaluate District’s Position –Is District Providing FAPE –Check Attitude of Service Providers –Fix District Shortcomings Once District is Solid - Don’t Go Wobbly –Don’t Stop Providing FAPE for Parents –Don’t Impair Educational Environment Other Students Staff Expense Dispute Prevention

Dispute Resolution At IEPT Meetings Focus on Purpose of Special Education –Don’t Talk About “Policy” –Be Frank About Negative Consequences of “Too Much” Too Many Pull Outs Too Many Modifications Too Much Time in General Education Give a Little, Provided: –Still Providing FAPE –Not Compromising Education Environment Informal Dispute Resolution Opportunities

Dispute Resolution After Warning Signs Warning Signs Slide Natural Reaction Smart Reaction – Reach Out –Hear Parent Out –Educate Parent –Discuss Opportunities for Resolution Informal Dispute Resolution Opportunities

Resolution Session and/or Mediation Value of Resolution Session Documenting Resolution –Know What You Want to Accomplish –Typically Want to Provide FAPE Want to Secure Dismissal and Release Resolution Session v Mediation –Importance of Mediator –Help the Mediator Help You Informal Dispute Resolution Opportunities

Enhanced Mediation Mediator/Designee as Decision Maker Agreement with Parent –Creates Procedure for Fact Finding –Empowers Mediator to Decide Issues Great for Small Intractable Cases Informal Dispute Resolution Opportunities

Offers of Judgment What When Effect –Narrow Issues –Position District for Award of Attorneys Fees Informal Dispute Resolution Opportunities

Choosing Cases for Hearing District Should Chose Cases for Hearing Criteria –Effect on Subject Student –Effect on Educational Environment Other Students Expense Staff The Challenge

Five Examples Certain Nurse Case Certain Paraprofessional Case Certain LRE Cases Certain Discipline Cases Certain Evaluation Cases The Challenge

Questions How to ‘Win’ Special Education Cases Robert A. Lusk Lusk & Albertson, PLC Woodward, Ste. 350 Bloomfield Hills, MI (248) Questions