Special Education Pro Bono Training

Special Education Pro Bono Training
Children’s Law Center Special Education Pro Bono Training Hosted by Steptoe & Johnson October 15, 2019

Jen Masi, Pro Bono Director
Introduction Jen Masi, Pro Bono Director

Quick Roadmap CLC Pro Bono Program Training Overview
Training Takeaways Agenda

CLC Pro Bono Program The Need The Reality The Impact
Without pro bono, many children and families would go without a lawyer. All types of lawyers have found success and satisfaction with our pro bono cases. The mere presence of a lawyer and use of advocacy skills often make all the difference.

CLC Pro Bono Program: WHO
Children’s Law Center Staff Pro Bono Attorneys - Private practice, in-house counsel, government, solo practice - Litigators and non-litigators - DC barred or eligible pursuant to DC Court of Appeals Rule 49

CLC Pro Bono Program: WHAT
Four Case Types Custody Guardian ad Litem (GAL) Caregiver Special Education Housing Conditions Approximately 200 new cases each year

CLC Pro Bono Program: WHERE
Community Community Caregiver Custody Judges Guardian ad Litem Pediatricians Special Education Housing Conditions

CLC Pro Bono Program: HOW
Screening Trainings & Resources Mentoring CLC completes thorough client screenings when assessing cases for pro bono placement. CLC offers a wide variety of training opportunities and resources. In-person trainings Online trainings and materials CLC provides mentoring by experienced CLC staff. Mentor assigned at case placement Mentor assigned by case type

CLC Pro Bono Program: WHY
Hands-on lawyering Direct advocacy Client counseling Negotiation skills Litigation opportunities Concrete results for children

Getting Involved Listserv Training Reach Out Take a Case
Sign up to receive information about our available cases and trainings. Training Attend a live training or review online training materials. Reach Out Reach out to Jen with questions and interest. Take a Case Consider co-counseling/teaming with colleagues.

Case Placement Process
Select Case Find a good fit based on your interest and availability. Placement Receive and review CLC case placement , which includes case contacts (to run conflicts), case intake, CLC mentor assignment, and resources for getting started. Mentoring Once conflicts clear, CLC mentors are available for initial case recommendations (and remain available throughout the duration of the case). Get Started Once conflicts clear, reach out to client to schedule initial meeting / send court proposed appointment order in GAL cases.

Training Overview Logistics Training Materials

Training Agenda Overview of Healthy Together & DC’s School System
What is Special Education? Section 504 of the Rehabilitation Act of 1973 Handling a Special Education Case The Due Process Hearing

Gain familiarity with the content.
Training Takeaways The Goal The Need Our Requests Gain familiarity with the content. CLC needs pro bono attorneys to help clients in these cases. The mere presence of a lawyer can often make all the difference. Training evaluation Please give us feedback! Introduce yourself We’d love to meet you! Reach out to take (or talk about) a case!

Overview of Healthy Together and DC’s School System
Special Education Pro Bono Training October 15, 2019

Overview of Healthy Together

What is a Medical-Legal Partnership?
A healthcare delivery model that integrates legal assistance as a vital part of the healthcare delivery system Expanding the concept of medical care for low- income families to include legal representation Program model based on prevention Removing non-medical barriers to children and families’ health and well-being Address adverse social conditions negatively impacting health through a variety of modalities

MLP Model Legal Medical one stop shop

CLC’s MLP: Healthy Together
Children’s National Health System One of the first and longest operating MLPs in the country In 2002, we began with one lawyer Lawyers on-site at Children’s Anacostia, main campus, Generations and IMPACT DC DC Bar Foundation grant supports SE and Generations and now housing cases from main hospital, CHC, Adams Morgan and Shaw through this Housing grant Work at IMPACT DC funded through new Build Health grant Mary’s Center In year 7 of partnership Grant funding originally secured through Mary’s Center’s Healthy Start Healthy Family program DOH Asthma Grant funding has also supported the MLP Unity Health Care On-site at Minnesota Ave and Upper Cardozo

Overview of DC’s School System
DCPS, Public Charter Schools, Other Options

Avenues for Enrollment in DC Schools
Residence in a particular neighborhood School lottery (myschooldc.org) Application high schools Transfer (safety transfer or other special transfer) Special education schools/programs: Placement decision related to services on special education plan Through hearing officer decision

Getting to School Students in DC must get themselves to school (for DCPS or Charter School) UNLESS They qualify for transportation as part of their special education plan or under the Americans with Disabilities Act OR The school provides transportation for all students

Section 504 of the Rehabilitation Act of 1973
504 Plans at School October 15, 2019

What is Section 504? The Rehabilitation Act of 1973, Section 504 is a broad civil rights law which protects individuals with disabilities in any agency, school, or institution receiving federal funds from discrimination and establishes their right to have the opportunity to fully participate with their peers.

What is Section 504? Regulations create affirmative obligations for schools that accept public funding for students with disabilities of mandatory school age. Schools are required to provide a free appropriate public education (FAPE) In DC, school is mandatory from age 5 (kindergarten) through age 18. For younger students who attend a public elementary school, the regulations are slightly less clear, but can be argued that they also are entitled to a FAPE. 34 C.F.R

Who is Protected? Section 504 covers qualified students with disabilities who attend schools receiving federal financial assistance. To be protected under Section 504, a student must be determined to: Have a physical or mental impairment that substantially limits one or more major life activities; or Have a record of such an impairment; or Be regarded as having such an impairment.

Who is Protected? A major life activity can include:
Caring for oneself Performing manual tasks Walking, seeing, hearing, speaking, breathing Learning Working

What does the law require of schools?
Provide a free appropriate public education (FAPE) to qualified students in their jurisdictions with a physical or mental impairment that substantially limits one or more major life activities. FAPE through Section 504 is generally defined the same as under The Individuals with Disabilities Education Improvement Act (IDEA) (case law)

When Are 504 Plans Used in Practice?
Where the child has a disability and needs accommodations but does not require special education services such as: Child with allergy needs classroom accommodations (e.g., nut-free environment) Child with ADHD needs to be allowed to doodle or do other work to avoid being disruptive Child in a wheelchair requires elevator access and bus transportation

Evaluations under Section 504
Districts are required to evaluate students with a suspected disability Evaluations are generally less comprehensive than IEP evaluations Parent must consent to initial evaluations Re-evaluations must be conducted before a significant change of placement In all other cases, re-evaluations must be conducted “periodically”

Content of the Plan Regular education teachers/social workers often implement 504 plans Can include: Medical interventions/services (e.g., nursing services) Behavior interventions Accommodations Modifications Transportation Services: OT, PT, SLT, specialized instruction

Development of the Plan
There is no set team of people, but typically includes: Parents Teacher(s) Evaluator School nurse Parental consent is NOT required to implement a plan, but usually parents are included and asked for consent.

Legal Protections All districts must provide procedural rights information to parents Must include notice, an opportunity to review relevant records and access to an impartial hearing All districts must have a dispute resolution/hearing mechanism Each LEA operates their appeals process differently. Some LEA’s have failed to create a proper appeals process.

Legal Protections Disciplinary protections for children who are eligible for Section 504 are the same as for children who are eligible for the IDEA Manifestation determination must be held for a child who has been suspended or otherwise excluded from class for 10 days in a single school year

IEP vs. 504 Plan With an Individualized Education Program (IEP), the parent and child have more legal protections and more direct legal remedies With an IEP, it is generally easier to get services in place Schools often take the position that they are not required to provide services under 504. This is because there is no federal funding for plans, but there is funding for special education services.

More Information The federal Department of Education Office of Civil Rights has some information: aq.html OSSE has also provided guidance to LEA’s on their obligations under Section 504: osse.dc.gov/sites/default/files/dc/sites/osse/pub lication/attachments/OSSE_DSE_Section 504_Toolkit pdf

Sample 504 Plan

What is Special Education?
Overview of DC Special Education Law October 15, 2019

Legal Authority The Individuals with Disabilities Education Improvement Act (IDEA) Title 20 USC § 1400, et seq. Federal Regulations 34 CFR Parts 300 and 301 (ages 3-21) 34 CFR Part 303 (ages 0-2) Local Regulations District of Columbia Municipal Regulations, Title 5

Legal Authority Four Newer Local Laws
Enhanced Special Education Services Amendment Act of 2014, D.C. Act Special Education Quality Improvement Act of , D.C. Act Special Education Procedural Protections Expansion Act of 2014, D.C. Act Student Fair Access to School Amendment Act of , DC Code § et seq.

Legal Authority OSSE Special Education Student Hearing Office Due Process Hearing Standard Operating Procedures Manual (SHO SOPM) Policies promulgated by OSSE and DCPS (e.g., Policies and Procedures for Placement Review)

Special Education System Framework
State Education Agency (SEA) The state school system of the state in which the child resides that oversees all LEAs (local education agencies) in the state; See 20 U.S.C. §1412. In DC: Office of the State Superintendent for Education (OSSE)

Special Education System Framework
Local Education Agency (LEA) The local school system of the county, city, or town in which the child resides and oversees the day-to-day delivery of specialized instruction and related services to children with disabilities; See 20 U.S.C. § 1413. In DC: District of Columbia Public Schools (DCPS) or the Independent Charter School (LEA Charter) All LEA’s have the same legal responsibility regardless of size.

What is the IDEA? The Individuals with Disabilities Education Act is a federal statute that is meant to ensure that all children with disabilities receive a free appropriate public education (FAPE) in the least restrictive environment (LRE). Children ages 0 to 22 are covered by the IDEA Part C of the IDEA covers children ages 0-2 Part B of the IDEA covers children ages 3-21

What is Special Education?
Specially designed instruction, provided at no cost to the parent, that meets the unique needs of a child with a disability. Special education can include: Travel training Vocational training Specialized academic instruction Related services Classroom accommodations and modifications See CFR §300.39

Related Services Can Include:
Speech and Language Therapy Occupational Therapy Physical Therapy Counseling Services/Behavioral Support Services Transportation Services Parent Counseling and Training Medical Services See 34 CFR §300.34

Accommodations/Modifications and Supplementary Aids and Services:
Dedicated Aide Use of iPad Special Seating Adaptive Furniture Extra Time for Tests Breaks During Testing or Class Testing at Best Time of the Day for Student

Accommodations/Modifications and Supplementary Aids and Services:
Specified Form for Directions (Repeated, Written, Oral) Use of Calculator See 34 CFR §300.42

Key Term: Free and Appropriate Public Education (FAPE)
Special education and related services: Provided at no charge to the parent under public supervision and direction Meets the standards of the State Education Agency (OSSE) Designed to meet the individual needs of the child to ensure the child makes educational progress Are provided in conformity with the child’s Individualized Education Program (IEP) See 20 USC §1401(9); 34 CFR §300.17

Key Term: Free and Appropriate Public Education (FAPE)
A child’s educational progress cannot be trivial or de minimus, must be appropriately ambitious in light of the child’s unique circumstances (new Supreme Court standard- Endrew F. v Douglas County School District RE-1).

Key Term: Child Find DC must ensure that all children with disabilities or suspected of having a disability, residing in the city (or who are wards of the city) and who are in need of special education and related services are identified, located, and evaluated.

Key Term: Child Find Applies regardless of the severity of the child’s disability Includes children who are: Not attending school Homeless Wards of the District (committed to CFSA or DYRS) Attending Private Schools and Public Charter Schools See 20 USC §1412(a)(3); 34 CFR §

Key Term: Individualized Education Program (IEP)
A written statement for each child with a disability that is developed, reviewed, and revised in accordance with the IDEA (20 USC §1414(d)) The plan governing what a child in special education should be receiving as part of his/her education See 20 USC §1401(14); 34 CFR §300.22

Key Term: Individualized Education Program (IEP)
“[Congress envisioned] the IEP as the centerpiece of the [IDEA]’s education delivery system for disabled children.” Honig v. Doe, 484 US 305 (1987

Key Term: Least Restrictive Environment (LRE)
To the maximum extent appropriate, children with disabilities are educated with children who do not have disabilities in a regular education classroom Children with disabilities should attend their neighborhood school unless that school does not have the kind of program that can meet their special needs See 20 USC §1412(a)(5); 34 CFR §

Steps to Obtain Special Education
Referral Evaluation Eligibility Determination IEP Development Placement Determination IEP Review Re-Evaluation

Step 1: Referral In order to be evaluated for special education and related services, a child with a suspected disability must first be referred for evaluations. A child must be referred by: Parent Employee of school system Adult child Employee of another state agency (e.g. CFSA, DMH) See 20 USC §1414(a); 34 CFR §301(b)

How are Referrals Made? Referrals should be made in writing to the school system or principal Referrals for children ages 0-3 should be made to OSSE for Early Intervention (Strong Start) Referrals for children ages 3-5 should be made to Early Stages

What Happens Once a Referral is Made?
The school must hold an MDT/IEP meeting after the referral is made and before conducting evaluations.

What Happens Once a Referral is Made?
At the meeting, the school should: Review current information and data about the child and any pre-referral interventions If further evaluations are needed, develop a Student Evaluation Plan (SEP) detailing the reasons for the referral and the evaluations to be conducted Explain to the parent what evaluations are to be conducted Obtain informed consent from the parent of the child (See 20 USC § 1413(a)(1)(D); 34 CFR § )

Multidisciplinary Team/IEP Team
MDT/IEP team must include: The parent(s) Special education teacher Individual who can interpret evaluation results Other persons at the discretion of parent or LEA, who have knowledge or special expertise regarding the child The child, if appropriate Representative of LEA who is: Knowledgeable about general curriculum of LEA Knowledgeable about the availability of resources of LEA Qualified to provide or supervise the provision of special education See 34 CFR §

Step 2: Evaluation The LEA is responsible for conducting a comprehensive and individualized evaluation to determine: Whether a child is a child with a disability, and The educational needs of the child See 20 USC §1414(b); 34 CFR § DC Code allows the school 60 days to complete initial evaluations.

Common Types of Evaluations: Psychological
Names of Psychological Evaluations Psycho-educational Evaluation - conducted by a psychologist Clinical Psychological Evaluation - conducted by a psychologist Comprehensive Psychological Evaluation - conducted by a psychologist Neuropsychological Evaluation - conducted by a neuropsychologist; for children who have an underlying neurological disorder, including autism.

Three main areas of testing Cognitive/Intelligence Social-emotional Academic testing

School Psychologist vs. Clinical Psychologist School psychologists only need to have a masters and be licensed by OSSE Clinical psychologists are PsyDs and have state licensure to practice School evaluations will give classifications from IDEA Independent Educational Evaluations (IEEs) by clinical psychologists will give DSM-IV classifications

Common Types of Evaluations: Psychiatric
Psychiatric Evaluation Conducted by an MD psychiatrist IDEA permits this type of evaluation, but schools rarely do it and refer out Not a good alternative to a psycho-educational - should be conducted in conjunction with it

Common Types of Evaluations: Related Services
Speech and Language Evaluation Physical ability to produce speech Expressive and receptive language Occupational Therapy Evaluation Fine motor skills Sensory differences Physical Therapy Evaluation Gross motor skills

Common Types of Evaluations: Related Services
Assistive Technology Evaluation Looks at whether any technology can assist the student’s educational functioning Functional Behavioral Assessment Series of observations to determine the root causes and triggers of a student’s problematic behaviors Used to create a behavior intervention plan

Group Exercise Child has been diagnosed with ADHD and does not have special education services at school. Your client’s main concerns are: He has trouble paying attention. He struggles with reading. Very impulsive and fights with classmates and teachers when frustrated. Writing is difficult to read. What evaluations do you ask for?

Step 3: Eligibility Determination
Once all evaluations are completed, the school must convene another MDT/IEP meeting Meeting is to review the evaluations Meeting must include someone who can interpret evaluation data

Step 3: Eligibility Determination
The MDT/IEP team must determine if the child: Is a child with a disability as defined in the IDEA; and If that disability impacts the child in the school setting such that they require specialized instruction and related services See 20 USC §1414(b)(4); 34 CFR §

Eligibility Determination
When making this determination, the MDT/IEP team must review the evaluations and other relevant information, such as: Existing evaluations provided by the parent Information provided by the parent Assessments conducted in the classroom State and local assessments of the child Observations of teachers and related service providers See 20 USC §1414(c)(1)

Disabilities Under the IDEA
Autism Deaf-Blindness Deafness Developmental Delay Emotional Disturbance Hearing Impairment Intellectual Disability Multiple Disabilities Orthopedic Impairment

Disabilities Under the IDEA
Other Health Impairment (includes ADHD, HIV/AIDS, etc.) Specific Learning Disability Speech and/or Language Impairment Traumatic Brain Injury Visual Impairment (Including Blindness)

What if a Parent Disagrees?
The parent has a right to request an Independent Educational Evaluation (IEE) to be paid for by the LEA Parents only need express their disagreement with the LEA’s evaluation and request funding for an independent evaluation Parents can disagree with the LEA’s decision not to evaluate or not to comprehensively evaluate The LEA may request additional information on the disagreement

What if a Parent Disagrees?
After a request for an IEE, the LEA has two choices under the law Provide funding authorization for an IEE without unnecessary delay File a due process complaint against the parent to prove the appropriateness of their evaluation 34 CFR §

Step 4: Development of an IEP
The IEP is developed by the MDT/IEP team The IEP must include: The child’s present level of performance Information on how the child’s disability affects his/her involvement and progress in a general education setting Measurable annual goals and objectives Levels and types of special education, related services, supplementary aids/services and program modifications

Step 4: Development of an IEP
The IEP must include (cont’d): An explanation of the extent to which the child will not participate with nondisabled children in the regular class Any accommodations required in the classroom and for standardized testing See 20 USC §1414(d)

Other Important IEP Components
Transportation Extended School Year (ESY) Behavior Intervention Plan (BIP) (See 34 CFR § (a)(2)(i)) Functional Behavior Assessment (FBA) should be done first

Other Important IEP Components
Transition Plan (See 34 CFR § ) Required for child ages 16 and over Includes a transition services plan and age- appropriate goals relating to: Training Education Employment Independent Living Skills, if appropriate

Step 5: Placement Meeting convened with the IEP/MDT team
Can be separated from or folded into an IEP meeting Placement is based on the individual needs of the child, and must consider: The IEP; and LRE requirements

Step 5: Placement Placement is made by a group of people, including:
The parent Other persons knowledgeable about the child, the meaning of the evaluation data, and placement options Placement must be determined at least annually Placement must be as close as possible to the child’s home See 34 CFR § ; 20 USC §1414(e)

Continuum of Placements
Instruction in General Education Classes Inclusion/Push-in Services by special education provider Instruction in Special Classes Pull out classes in academic subjects or for related services Ranges from one or two classes to the bulk of a child’s school day

Special Schools Educational placement where a child spends all day in a special education setting with special education peers. No contact with regular education peers during the day Can be a public school or a non-public school

Home Instruction Instruction in Hospitals and Institutions Residential programs are for kids unable to function in the community Children with disabilities in residential programs must be able to access their specialized instruction See CFR § and §

Step 6: IEP Review IEPs must be reviewed and revised as necessary, but at least once a year A parent or school can request an IEP meeting at anytime if there is concern about the provision of FAPE to the child For example: Child is regressing in academic or behavioral areas Child has begun to act out Child has made excellent progress and goals need to be adjusted See 20 USC §1414(d)(4)

Practice Reading an IEP
Turn to the IEP in your handouts What is the eligibility classification? What type of meeting is it? What is the date of the meeting? What services does the student receive? Inclusion or pull out services?

Step 7: Re-Evaluation A child who receives special education services must be re-evaluated in all areas of suspected disability every 3 years unless all members of the team agree that it is not necessary A school may not unilaterally make the decision not to evaluate Team’s decision not to evaluate should be documented A child can be re-evaluated more frequently at the request of the parent or teacher

Step 7: Re-Evaluation School must also re-evaluate child “as conditions warrant” Sudden change in school performance Significant event in child’s life (death of parent, trauma) impacting school performance See 20 USC §1414(a)(2); 34 CFR § (b)(2)

Procedural Requirements for the Provision of FAPE
The LEA must provide parents: A copy of the Procedural Safeguards The opportunity to review their child’s educational records The opportunity to meaningfully participate in IEP development and placement decisions The opportunity to obtain an independent educational evaluation

Procedural Requirements for the Provision of FAPE
The LEA must provide parents (cont’d): Prior Written Notice when proposing or refusing to initiate or change the provision of FAPE to the child (now including a change in educational location) The opportunity for mediation The opportunity to file a Complaint “Stay-put” rights until the complaint is resolved

Prior Written Notice (PWN) Must Include:
A description of the action proposed or refused by the agency An explanation of why the LEA proposes or refuses to take the action A description of each evaluation procedure, record, or report used as a basis for the action

Prior Written Notice (PWN) Must Include:
A description of other options considered by the IEP team and the reason why those options were rejected A description of the factors that are relevant to the LEA’s proposal or refusal See 20 USC §1415(c)

Troubleshooting Denial of FAPE: Procedural Issues
Timeline violations Notice to parents Parent involvement IEP team participants IEP implementation Timely evaluations

Troubleshooting Denial of FAPE: Substantive Issues
Meaningful progress IEP implementation Appropriate instruction Appropriate evaluations LRE Appropriate educational placement Appropriate teachers and therapists

A Procedural Violation = Denial of FAPE When:
It impedes the child’s right to a FAPE; It significantly impedes the parent’s opportunity to participate in the decision- making process regarding the provision of a FAPE to the child; or It caused a deprivation of education benefits to the child  HARM See 20 USC § 1415(f)(3)(E)(ii)

Discipline: Suspensions and Expulsions
Students with disabilities have special protections in disciplinary matters Can still be suspended, but depending on number of days, school must follow certain procedures A student with a disability is always entitled to a FAPE and can never be excluded from receiving an education

Discipline: Suspensions and Expulsions
These protections cover children with disabilities who have not yet been found eligible for special education if: The school system knew or should have known that the child is a child with a disability through parent or teacher referral See 34 CFR §

New Discipline Law: Student Fair Access to School Amendment Act of 2018 (SFASA)
DC Code § through § Uniform school discipline reform that applies to DCPS and public charter schools. Sets limits on schools’ use of suspensions, expulsions, and involuntary transfers.

SFASA: Out-of-School Suspensions
Out-of-School Suspension cannot exceed five consecutive school days for grades K-5 Out-of-School Suspension cannot exceed ten consecutive days for grades 6-12 A student cannot be suspended from school for more than twenty cumulative school days in a school year unless the head of the LEA provides written justification for emergency removal

SFASA: Other Key Provisions
LEA must develop transparent evidence-based discipline policies Involuntary transfers are now equivalent to expulsions A suspension of six days or more is considered a long- term suspension Attendance-related discipline outlawed Schools cannot require re-entry meetings prior to student’s return MDR reviews must consider all of student’s known disabilities

Extra Protections for Students with Disabilities
Excluding a child with disabilities from class for more than 10 school days is a change in placement. Therefore, the school must hold a meeting to determine whether the behavior is a manifestation of the student’s disability This meeting must take place whether it’s been 10 consecutive days or 10 days throughout one school year

Extra Protections for Students with Disabilities
If it is a manifestation, and/or is a result of the school’s failure to provide appropriate services or implement the child’s IEP, then the suspension/exclusion cannot take place.

What is a Manifestation Determination?
A meeting of the child’s IEP team to determine if the behavior that lead to the disciplinary action is substantially related to the child’s disability

The IEP team must convene within 10 school days to determine if: (i) If the conduct in question was caused by, or had a direct and substantial relationship to, the child's disability; This is NOT whether the child knows right from wrong OR (ii) If the conduct in question was the direct result of the LEA's failure to implement the IEP. (iii) DCPS also considers if the IEP was appropriate

The IEP team must review and consider all relevant info, including: Evaluations Observations of the child Information provided by the parent Current IEP and placement See 34 CFR §

Manifestation Determination: Results
If the team answers “yes” to any of those questions, the behavior is deemed to be a manifestation of the child’s disability and the disciplinary action must be rescinded. There is an exception for incidents where child had dangerous weapon, drugs, or caused serious bodily injury

Manifestation Determination: Results
In addition, the school must: Conduct an FBA and create/implement a BIP Review a BIP already in existence and modify it as necessary Permit the child to return to their previous placement, unless team agrees there should be a change in placement 34 CFR §§ through 20 U.S.C. 1415(k)(1) and (7)

And if a Parent Disagrees?
Expedited Due Process Hearing is always available DCPS Students DCMR regulations apply to DCPS students (not DCPS-LEA charter school students) (DCMR Title 5, Chapter 25) Disciplinary hearings available for suspensions over 10 days Other types of advocacy may be possible

And if a Parent Disagrees?
Charter School Students (even DCPS) No DCMR regulations exist for charters but they do have to follow the IDEA disciplinary provisions Charters set their own disciplinary policies, and many do not have clear policies Limited appeals may be possible

School Discipline Hypothetical
De’vonte is a 6th grader with an IEP that provides specialized instruction and counseling services. His disability classification is Other Health Impairment. After getting into a big fight with some other students at school, he is being referred for a 30 day suspension. As you prepare for the meeting, your client tells you that De’vonte loved his counselor at the beginning of the school year, but she quit and he is not sure who his counselor is now.

School Discipline Hypothetical
What additional evidence would you want to collect before your MDR? What arguments would you raise at the MDR? What arguments do you think the school would raise?

Section 504 of the Rehabilitation Act of 1973 What is Special Education Handling a Special Education Case The Due Process Hearing

Handling a Special Education Case
October 15, 2019

Client Realities: Representing Parents
Family Housing Violence Finances Health Insurance Food Child Care Disability Immigration Education

Other Issues that May Be Impacting Clients
Income Your client may work BUT  many wage jobs do not allow time off to attend meetings, answer calls, etc. Even very low wage employment cuts families off from much state assistance, adding financial pressures on the family Your client may not work May have young or needy children requiring their full attention May have a disability of their own

Public Benefits Certification and recertification processes can be arduous Do not cover the cost of raising and feeding a family Housing is often unsafe, unsanitary, and unstable

Group Exercise: Initial Client Meeting
Imagine you have scheduled a meeting with your new client, Ms. Roberts, to be held at your law firm’s office. She does not show up for the meeting, and you cannot reach her by phone. How do you feel when the client doesn’t show? What are the possible reasons your client couldn’t make the meeting?

Education Your client may not: Have graduated from high school Have basic literacy skills Have been provided the information they need to advocate for their children Other Stressors Your client may: Have responsibilities for extended family members, neighbors, etc. Have to rely on public transportation Not to be safe in his or her home or neighborhood

Implications: Client Interactions
Barriers to communication via phone or face to face: Inflexible job Transportation Costs Time commitment for using public transportation Caring for an infant or other relative Cost of cell phone minutes

Implications: Client Interactions
Client may come to you frustrated and confused Frustrated with the school, and sometimes the child him or herself May not understand everything that is happening to his/her child or how to fix it May be overwhelmed by other stressors

Implications: Communication
Make sure your client knows how to contact you Send a letter with your name, address, phone number, and

Find out all possible ways to contact your client Some client’s contact information may change during representation, make sure your client knows to keep you up to date At the end of the month, client’s cell phones may be shut off—try again at the beginning of the month Ask for the phone number of a friend, family member, or other person who can be a back-up contact

In written and spoken correspondence, always use regular language your client can access and understand Check in consistently (e.g., “Did I explain that okay?”) Thoroughly explain verbally anything you send to your client in writing

Try to keep written communication at an eighth grade level Many programs allow you to check literacy levels Discuss how you and your client will stay in regular communication early in your representation

First Steps When you take a special education case from Children’s Law Center, you will receive all the information and every document we were able to gather during our intake process You will receive an intro from your mentor once you notify us that your conflicts check is complete CLC will reach out to your client to notify them that we have found a pro bono lawyer to help and that the pro bono lawyer will reach out soon

First Steps Contact the client as soon as possible to schedule initial meeting Ask them to update you on anything that happens with the school, including if the school wants to schedule a meeting Consider transportation and logistical challenges for the client Consider whether client needs funds to get to your office

Initial Client Meeting: The Basics
Sign retainer and release in the initial meeting Review and sign the retainer Get client to sign a release of information You will want to explain what it means to work with a lawyer Confidentiality The relationship (e.g., the client is the “boss”) Long and short term goals Importance of staying in contact

Initial Client Meeting: The Basics
Use simple language—don’t use legalese or abbreviations! Discuss who will communicate with the school about requests for meetings, evaluations etc. Be explicit about when you want them to contact you Any contact from school Before signing anything Training manual has some suggested topics for the first meeting in Tab 1

The Mentor – Mentee Relationship:
Do’s and Don’ts

Mentor-Mentee: Do’s and Don’ts
Do reach out to us with your questions! Don’t wait until the last minute to reach out to us! Do take advantage of our resources (e.g., pro bono manual, special education resources, special education law, samples) Do us to connect and to set up a call

Mentor-Mentee: Do’s and Don’ts
Do be confident in your abilities! Don’t be afraid to ask questions of the school Do allow your client to direct representation Don’t forget your client may be juggling multiple issues and struggling with scarcity limited bandwidth, basic needs, and trauma Don’t forget you can make a difference!

IEP Meetings: Before the Meeting

Before the Meeting ... Request records (five days before)
Review drafts and evaluations and discuss with client Determine whether or not you want to invite additional participants Prepare your client!

Before the Meeting: Request Records
You should try to ensure you have all the relevant prior records in the case (from an initial records request) Pursuant to DC Code § 38– (c) schools are required to provide parents with copies of documents to be reviewed at meetings at least five days before the meeting the school five days before if you haven’t received the records If the school fails to provide them – you can ask for the meeting to be rescheduled but weigh pros vs. cons

Before the Meeting: Review the Records
Evaluations Diagnoses and Recommendations Sources of Information and Records Reviewed Compare to prior evaluations IEPs Correspondence between baseline, needs and goals Comparison between different IEPs (same goals? Academic improvement?) Anything in the IEP that could be applied to any student with a disability

Before the Meeting: Review the Records
Eligibility and Placement Documents Has it been completed before a team meeting? Information reviewed

Before the Meeting: Do You Need Other Participants?
Educational Expert or Consultant Psychologist or Evaluator (especially if IEE has been completed) Paralegal (to take notes) Student (if appropriate) Other individuals knowledgeable about the child (doctors, mentors, social workers or outside service providers)

Before the Meeting: Prepare Your Client!
Review records with your client and discuss purpose of the meeting Check in with your client before the meeting to discuss: If other issues have arisen he/she wants addressed at the meeting Client’s goals for the meeting Agree who will speak about what (you v. your client) How to handle if you want to speak with each other

Before the Meeting: Prepare Your Client!
Discuss advocacy style May also want to discuss transportation logistics

During the Meeting: Do’s and Don’ts

Do’s for IEP Meetings DO let teachers and school staff provide updates on the child’s progress from their perspective DO ask for names and roles of participants if they aren’t made clear at the beginning of the meeting DO ask for a break or time to speak with your client alone as needed

Don’ts for IEP Meetings
DON’T be afraid to ask questions about acronyms, goals, meeting purpose, etc. DON’T sign overly broad documents without editing them (e.g. consents) DON’T leave a meeting you disagree with without making sure your disagreement is somewhere in the notes

Post-Meeting Advocacy

After the Meeting … Debrief with your client
Memorialize meeting notes and points of contention Follow up on outstanding items

After the Meeting: Debrief
Check in with your client about: How they feel the meeting went Whether or not they felt heard Impressions of the team and whether or not their goals can be met Next steps Post-meeting debriefs are also a good time to: Counsel client on legal rights vs. goals (if in conflict) Pros and cons of litigation (if appropriate)

After the Meeting: Memorialize Concerns
Consider writing a letter after the meeting to: Document your own notes Memorialize points of contention Ask letter be made a part of child’s special education records Examples of letters are available in the pro bono practice manual online Benefits Admissible as evidence at due process hearings (do cc your client) May clarify issues or push movement forward

After the Meeting: Follow Up
Set a tickler in your calendar to follow up on items promised after meeting (notes, evaluations, etc.) May also help build your record for hearing (if there has been follow up but no response)

When Do Special Education Cases End?

Closing Your Special Education Case
Not “lawyers for life” When to consider closing your special education case: No remaining active legal issues Child is changing schools Communication issues

Closing Your Special Education Case
When you have to close your special education case: Child has moved to another state Client is out of contact/unable to communicate case goals

How to Close Your Special Education Case
Schedule in-person meeting with client to review case and case goals Use meeting as an opportunity to review client advocacy skills and possible issues that may come up After meeting, send case closing letter (see manual) Need to make sure client is clear case is closing

The Due Process Hearing
Overview of the Process, Practice Tips, and Litigation Skills October 15, 2019

Due Process Hearings Special education cases are litigated administratively The “trial” is called a due process hearing Independent Hearing Officers are contracted to hear petitioner claims In D.C., hearing officers contract with, but do not work for, OSSE In D.C., hearing officers directly control other aspects of case management

Due Process Hearings Due Process hearings play out over a very short timeline – just 75 days from the day you file to the day you receive a hearing officer decision Hearings can be expedited if related to discipline or student’s safety is in question Hearings are held at the Office of Dispute Resolution, located at 1050 First Street, NE

Filing a Complaint Complaints should include basic facts, a list of legal issues, and general proposed remedies Who can file? Parents can file a complaint regarding any matter relating to the provision of a free and appropriate public education LEA can also bring a complaint against the parent in certain circumstances Parent refuses to consent for initial evaluation or re-evaluation Parent has requested an IEE and the school wants to defend its own evaluation Child over 18 who has educational rights can file on his/her own behalf

What can you file about? Any denial of FAPE against the student by the LEA or SEA you are naming in your complaint Alleged violations must have occurred not more than 2 years before the date the filing party knew or should have known about the alleged action forming the basis for the complaint There are statutory and case law exceptions to the statute of limitations

Burden of Proof Petitioner always bears the burden of production
The burden of persuasion may shift from the petitioner to the LEA if: Appropriateness of IEP or placement is an issue AND Petitioner establishes a prima facie case that the IEP or placement is inappropriate Burden can only shift on IEP and placement (that is not a unilateral parental placement)

Common Evidence at Hearings
Documentary evidence School records Letters by parent/attorney to the school Evaluations Medical/therapy records Testimonial evidence Parent Therapists Experts: educational, evaluator, psychiatrist

Using Experts Attorneys often find an expert helpful to help them determine next steps, appropriateness of an IEP, and placement issues. Types of experts: Psychologists (often evaluators) Speech-language, occupational therapy, or physical therapy experts Psychiatrists Counselors Educational expert (often former long-time special education teachers and administrators)

Using Experts Why retain an expert?
Parent has burden of proof (at least to establish prima facie face) Expert opinion is sometimes necessary to prove issues raised in your case Experts can help in understanding child’s needs Discussion of appropriateness of proposed remedy

Costs of Experts Expert costs are variable
Expectation is that firm will pay cost of experts CLC will look for non-litigation case if pro bono attorney does not have access to litigation funds Cost Example: Educational Experts Often retained for an independent evaluation of educational need From $3000-$10,000 for investigation and hearing

Costs of Experts Evaluators
Independent Educational Evaluations (IEEs) authorized by the LEA are paid by the LEA at pre- determined rates Firm may pay cost of evaluation if no IEE or if IEE rates do not cover cost of preferred evaluator Evaluators will typically charge an additional fee to testify, if needed Hourly fees for testimony range widely

Costs of Experts Special Education Student Rights Act of (DC Act ) For cases filed after July 1, 2016, reasonable expert witness fees may be sought in many cases

Litigation Options When filing, you can choose: Mediation only
Mediation and a due process hearing Note that mediation tolls the timeline for the due process hearing Due process hearing only Expedited due process hearing Motion required, even if automatic entitlement

What Remedies are Available?
Any remedy that can address the denial of FAPE is possible. Prospective remedies include: Placement Increased services on the IEP Addition of services/accommodations on the IEP Retrospective remedy is called compensatory education

Compensatory Education
Compensatory Education (Comp Ed) is the term for the remedy for past denial(s) of FAPE In DC, compensatory education must place the child where s/he would have been but for the LEA’s failure to provide FAPE Key case: Reid v. D.C., 401 F.3d 516 (2005)

Comp Ed can include anything the child needs, including: Tutoring Speech and language/physical therapy/occupational therapy services Mental health services Transition services Mentoring Technology and software

Consider some key questions to ensure your case in chief supports a compensatory education award For the time period in question: What should the IEP have looked like? What level of services should have been in place? What should the placement have offered?

Had everything been appropriate, where would the child be: Academically, Socially and emotionally, and/or Functionally What does the child need to be put in the place they would have been, but for the denial of FAPE? What evidence do you have to support your claim? Is there precedent that supports a novel comp ed request?

What happens after you file?
30 Day Resolution Period: By Day 10: DCPS files answer By Day 15: Dispute Resolution Session/Resolution Session Meeting convened by LEA; Non-confidential meeting with LEA to try to resolve the case Pre-Hearing Conference: May occur any time Telephonic conference to review issues, scheduling and witnesses Pre-hearing order issued within 3 days

45 Day Litigation Period: 5-day disclosures due 5 business days before the hearing The Hearing: Conducted like a regular trial with openings, petitioner’s case, respondent’s case, closings EXCEPT: The whole proceeding is conducted while seated around a conference table All documentary evidence in the disclosures is admitted at the beginning of the hearing unless there is an objection Hearsay is admissible Witnesses may testify by phone

45 Day Litigation Period (cont’d): Hearing Officer Decision due at the end of the 45 day period Appeals are to federal district court

Thank You!

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