A Behind the Scenes Look at a Due Process Hearing from One School District's Perspective - Paula Maddox Roalson and Christina Garcia Walsh ...
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A Behind the Scenes Look at a Due
Process Hearing from One School
District’s Perspective
Paula Maddox Roalson and Christina Garcia
Walsh Gallegos Treviño Russo & Kyle
Jerry Gore, South Jasper County SSAA Behind the Scenes Look at a Due Process Hearing
One School District's Perspective
Paula Maddox Roalson Jerry Gore
Christina Garcia Director of Special Education
Attorneys at Law South Jasper County SSA
“The Road Goes On Forever …”*
Discussion and take-a-ways from
one case …
from one school’s perspective …
and one DPH journey that lasted for
more than a year.
*Robert Earl Keen; Album “West Textures”
(Nov. 10, 1989; Sugar Hill Records, Prod. Jim Rooney)
Grounds for Challenge in a DPH:
Identification
Evaluation
Educational Placement
Provision of FAPE
• 34 C.F.R. 300.507(a)(1)
© Walsh Gallegos 2018 1Speaking the Language of Special Education
Litigation
• Request for Due Process
Hearing
• Stay-Put
• Resolution Session
• Statute of
• Prior Written Notice Limitations
• Hearing Officer(s) • Mediation
• Continuance • Disclosure
Procedural History of This DPH:
October 2016 DPH requested
February 2017 Case reassigned to SEHO #2
March 2017 Petitioners requested a second DPH; cases are
consolidated
July 2017 Case reassigned to SEHO #3
August 2017 Hurricane Harvey Hits
August 2017 Case reassigned to SEHO #4
September 2017 Motion to Recuse Hearing Officer Denied
October 2017 Due Process Hearing
January 2018 Decision Issued
How It Begins:
Special Education Due Process
Hearing Request
How Will I Get the News?
Digital Communication from Texas Education Agency:
“Notice of Filing of Request for a Due Process Hearing”
Notice from Parent or Legal Counsel Upon Filing
Notice must include a description of facts relating to problem and
proposed resolution
© Walsh Gallegos 2018 2The Crux of This Case: Child Find
34 Code of Federal Regulations § 300.111 Child find.
(a) General.
(1) The State must have in effect policies and procedures to
ensure that—
(i) All children with disabilities residing in the State,
including children with disabilities who are homeless children or are
wards of the State, and children with disabilities attending private
schools, regardless of the severity of their disability, and who are in
need of special education and related services, are identified,
located, and evaluated; and
...
Other Central Issues In This Case:
Whether District failed to timely and appropriately evaluate Student;
Whether District failed to devise appropriate individualized education
programs ("IEP") for Student;
Whether District failed to comply with Student and Parent's procedural
rights;
Whether District failed to protect Student and/or Parent from bullying,
harassment, discrimination and/or retaliation
The Importance of Evaluation Data
• Timothy O. v. Paso Robles USD, 67
IDELR 227 (9th Cir. 2016)
• Evaluation data is to the ARDC
as evidence is to the jury.
• All decisions about eligibility, IEP
content, and placement must be
based on evaluation data.
© Walsh Gallegos 2018 3Eligibility Decisions and the Importance of
Clear Communication: Roles & Responsibilities
• The ARDC reviews the EVALUATION DATA to
determine if the child NEEDS special education to
receive FAPE.
• Note four critical elements: ARDC, Evaluation data,
Need, FAPE.
• This tells the parent 1) who will decide (ARD); 2) on
what basis (Evaluation); and 3) with what criteria
(Need for FAPE).
This Case:
• Student had displayed some behavioral issues over the
three years Student was enrolled in the District. Student
had displayed some academic difficulties during the same
time period, but performed successfully overall and was
promoted from grade to grade.
• Following a disciplinary removal, Student’s Parent sent an
e-mail to an administrator, requesting an FIE of Student.
• A staff member met with the Parent the next
day and obtained Parent consent for the
evaluation.
• That was a Friday.
• The following Tuesday, the Student’s Parent
requested the DPH.
© Walsh Gallegos 2018 4“But They Agreed…”
May parents file a request for a special
education due process hearing over an
evaluation or IEP with which they agreed?
YES.
“…nothing … would prevent a parent or public agency from filing a due process
complaint regarding an IEP that is not the most recent IEP, provided that the alleged
action forming the basis of the due process complaint occurred [within the limitations
period]…there is no provision in the IDEA or its implementing regulations requiring that
a parent agree to an IEP.” Ltr to Lipsitt, 52 IDELR 47 (OSEP 2008)
The IEE and The Battle of the Experts
Like in this case, an IEE provider might serve as an expert for the
parent. Considerations for the school district:
• Does the District have an expert? Does the District need an expert?
Shafi A. v. Lewisville ISD, 69 IDELR 66 (E.D. Tex. 2016)
• Check the IEE to see if it was done in conformity with district criteria.
Have the ARDC review the IEE. You must do so per the IDEA and its
regulations. Be prepared to articulate why you agree with some
recommendations and not with others.
Eligibility – the Central Issue in a Child Find
Case • Doe v. Cape Elizabeth School Dist.,
68 IDELR 61 (1st Cir. 2016)
• “She can’t possibly be eligible. She
has a 130 IQ and is making straight
A’s.” WRONG.
• That student is very likely not going to
be eligible, but the categorical
dismissal of the possibility, without
evaluation data, is a problem.
• Do the evaluation, and then decide.
© Walsh Gallegos 2018 5Educational Need • Devon L. v. Clear Creek ISD, 116 LRP 38829 (S.D. Tex. 2016) • “Importantly, the determination of educational need was not for an outside provider to make but was within the judgment of the ARDC.” • “The observations of teachers who spend time daily with Devon in the educational setting are more reliable regarding educational need than those outside providers who base their opinions on isolated school observations and parent-provided information and documentation.” But What Is “Special Ed”? • L.J. v. Pittsburg USD, 2016 WL 4547360 (9th Cir. 2016) • Special education is “specially designed instruction.” SDI: “Adapting…..the content, methodology or delivery of instruction.” • In an era of differentiated instruction, RTI, 504 accommodations, and instruction aimed at the learning style of the student….does this definition have any meaning anymore? The SEHO’s Decision In This Case: • Noted that experts for both sides agreed that Student did not demonstrate a learning disability • Noted that Petitioners’ Expert identified an ED “diagnosis”; the District’s expert did not. Found the school evaluation inappropriate and awarded the costs of an IEE to Parent. • But determined that Student’s educational performance was not adversely affected by the emotional disturbance cited by Petitioners’ Expert and concluded Student did not demonstrate an educational need for special education. School wins. © Walsh Gallegos 2018 6
The SEHO Opinion In This Case, cont’d:
“Academically, Student continuously made A's and B's on report
cards, being on the A-B Honor Roll from time to time. [Student]
moved from grade to grade throughout [Student’s] school years.
Further, Student passed the STAAR reading and math tests every
year with one exception. [Student] did not pass the [ ] portion in
[ ] grade. District put [Student] in a [ ] lab, Student responded
to the intervention, and passed the [ ] portion in [ ] grade.
When considering the entire record, I do not find that Student's
educational performance is adversely affected by the emotional
disturbance diagnosis of Petitioner's Expert. Student is not
eligible for special education services.”
Procedural Point: The SOL
Statute of Limitations – 1 year
Exceptions to the Statute of Limitations:
• Specific misrepresentation by District that it resolved the problem forming the basis of
the complaint; or
• District withholding of information from the parent that was required to be provided to
the parent.
Stay Put—Does not apply to disciplinary removals. Otherwise, Student must
remain in current educational placement. Parent and District may agree to
implement part/all IEP
In this case, no evidence to support exception to SOL
Practice Pointers and
Take-A-Ways:
1. What Do I Do First When I Receive
Notice of a RDPH?
Alert the School Attorney Immediately
Begin Counting to 10 and 15
Check for Prior Written Notice
Gather/Preserve/Organize ALL Student Records
© Walsh Gallegos 2018 72. How do I respond to a Due Process Hearing Request?
District’s Response to the Request for Due Process Hearing
is Due Ten Days After the District Receives Notice of the
Due Process Complaint
Must include prior written notice, if PWN has not
previously been provided to the parent
Specifically addresses all issues raised in the complaint
3. What is a Resolution Session?
Purpose:
For the parent to discuss the
complaint and the facts that
form the basis of the complaint,
so that the [school] has the
opportunity to resolve the
dispute that is the basis for the
due process complaint.
34 C.F.R. 300.510(a)
4. Tell me more about the Resolution Session
Who must attend?
–Relevant members of the ARD committee who have
specific knowledge of the facts raised in the request
for due process hearing; a school representative who
has decision making authority must attend. Can be
waived by both parties in writing.
Who decides who is “relevant”?
–The Parent and the District
Can the School Lawyer Come?
–Only if the Parent is represented by counsel
© Walsh Gallegos 2018 85. But I want my attorney!
District’s attorney not allowed unless parent’s attorney
attends. Functional equivalent is not allowed – leaving
meeting frequently to discuss strategy with District’s
attorney or school attorney listening in to meeting via
phone
District’s attorney may draft the settlement agreement
after the Resolution Meeting
What if the parents bring an Advocate? This is still not
an attorney, so the District’s attorney may not attend.
What if the Principal or the parent is an attorney?
Distinguish attorney for a party vs. those with a right
to be there that happen to be an attorney.
6. What if the parent refuses to participate?
The school district can request
that the due process hearing
be dismissed
34 C.F.R. 300.510(b).
7. What are some pointers for conducting the
Resolution Session?
• Use an Agenda
• Make Records Available to Parent Beforehand
• Have Parent Identify the Nature of Complaint
• Parent Statement of Facts Supporting Complaint
• Relief Requested by the Parent
• School District Response
• Take Deliberations
• The regulations do not provide that the resolution session
is confidential absent an agreement of the parties to the
contrary
© Walsh Gallegos 2018 9Continued -
• Choose the participants wisely
• Parent input in participants
• Remember, purpose is for the
parent to discuss the complaint,
and facts, and give the District the
opportunity to resolve the
complaint
• School District Response
• Organize the issues
• Note proposed resolution
• Consider a compromise
Continued -
•Be prepared to enter into a written agreement if
resolution is reached
•The agreement must be signed by both the
parents and the District representative
•Check Board Policies regarding authority
•Agreement can be voided within 3 business days
of execution - 34 C.F.R. 300.510(d),(e)
Notes on Attorney’s Fees
• El Paso ISD v. R.R., 53 IDELR 175 (5th Cir. 2009)
• “Early resolution through settlement is favored under
the IDEA. The statute bars an award of attorney’s fees
for work performed subsequent to a written settlement
offer that does not achieve anything more than that
which was offered…Here EPISD offered R.R. all of his
requested educational relief at the resolution meeting.
© Walsh Gallegos 2018 10A Recent Case on Settlement Offers
• I.W. v. Hardin-Jefferson ISD (E.D. Tex. 2017)
• Our special education hearing system is set up to
encourage districts to make a generous settlement
offer; and to encourage parents to accept it.
• Hardin-Jefferson case is a good illustration. Attorneys’
fees reduced from $101,843 to $6500.
8. Why should we compromise if
we have done nothing wrong?
• It costs a lot of money to
proceed with a DPH
• There are no guarantees in a
DPH and you risk payment of
parent attorney fees
• Ongoing relationship with the
parents
• Impact on the student
9. What about Mediation? Is that a possibility?
•Voluntary Process •Impartial Mediator
•TEA pays for the •Settlement
Mediator Agreement
•District’s Attorney •Confidential
May Attend
© Walsh Gallegos 2018 1110. What practical things should we know going into a
Due Process Hearing?
• There are no guarantees on the outcome
• You will spend far more time in preparation that you
anticipate
• There are usually surprises during preparation
• The document issues are intensive – you will spend a lot of
time collecting student records, e-mails, digital information
maintained on school servers, answering discovery, etc.
• Due Process Hearings are expensive in both staff resources
(time away from instruction to prepare for the hearing) and
legal fees
How can we avoid having a hearing requested?
Solid communication with Parents
Candid Reviews of School Climate,
Culture, Accessibility, and History
Train Staff and Hold Staff
Accountable
Train Parents and Students
Look Closely at Student
Performance
Know When to Contact Legal
Counsel
How to Reduce Liability
Take every allegation
seriously
Engage in prompt remedial
action Never make decisions based
on administrative convenience
Acknowledge mistakes, with
the help of legal counsel, Keep child-centered in every
instead of covering them up decision
Train, Train, Train Go back to ARD
Conduct a self audit Document, Document,
Document
Monitor the effectiveness of
services Hire a good lawyer
© Walsh Gallegos 2018 12Paula Maddox Roalson | Christina Garcia
Houston Office
proalson@wabsa.com | cgarcia@wabsa.com
www.walshgallegos.com
713-789-6864
The information in this presentation was created by WALSH GALLEGOS TREVIÑO RUSSO & KYLE P.C.
It is intended to be used for general information only and is not to be considered specific legal advice. If specific legal advice is sought, consult an
attorney.
© Walsh Gallegos 2018 13You can also read
