Franklin J. Hickman Janet L. Lowder David A. Myers Elena A. Lidrbauch Sandra J. Buzney Judith C. Saltzman Mary B. Mckee Amanda M. Buzo Lisa M. Montoni

Penton Building 1300 East Ninth Street

Suite 1020 Cleveland, Oh 44114

Telephone (216) 861-0360 Fax (216) 861-3113

374 Broad Street, Suite 2

Elyria, Oh 44035 Telephone (440) 323-1111

Fax (440)323-4284

© Hickman & Lowder Co. L.P.A. 2008 This is a summary only and is not intended to provide legal advice.

For individual issues, you should consult your attorney.

DISPUTE RESOLUTION IN EDUCATION CASES Alternative Strategies and Pitfalls

Franklin J. Hickman Judith C. Saltzman

February, 2008

Overview

•Informal tools•IDEA Remedies

~ Mediation~ Due Process~ Resolution Session

•Discipline Remedies•Appeals•Attorney fee issues•Complaints

~ ODE~ OCR

Informal Tools

•School level~ Teacher ~ Principal

•Special Ed Coordinator

•Superintendent

Remedies -- Mediation

•Can be done with or without filing due process.

•State has new mediators~ List on ODE website

•To Request Mediation:http://www.ode.state.oh.us –search for

mediation

Due Process: When to File

•Request for due process must be filed within two years of when parent~ Knew about violation~ Should have known about violation

•Longer if district~ Misrepresented resolution of issue ~ Withheld required information

Due Process Notice

•Must include nature of problem

•Scope of due process based on content of notice~ Unless other party agrees

•Amended notice possible with consent of~ Both Parties

OR~ Hearing Officer

District Response to Notice

•District must respond within 10 days after receiving complaint

•Response must addresses issues in due process notice~ Unless school addressed issues in

prior written notice

Resolution Session

•Prior to due process hearing~ Unless parties agree to waive in writing

•Includes~ Parent~ IEP team~ Attorneys for both sides or no attorneys

•Agreement enforceable in court

Timing of Resolution Session

•Must be held within 15 days of request for hearing

•30 days after session to resolve

•If not successful, time for due process resumes

Discipline

Right to FAPE is available to children who have been suspended or expelled

20 USC 1415 (k)34 CFR 300.530(d)(i)

Discipline

•10 days ~ No review

•Over 10 days~ Manifestation Determination

•Student may be in Interim Alternative Educational Setting (IAES) but must receive IEP services

Manifestation Determination

•Within 10 school days of decision to change placement (suspend)

•Team~ Parent~ Local Educational Agency~ Relevant members of IEP team as

determined by parent and district

Manifestation Analysis

•Group shall review all relevant information in student’s “file”~ IEP~ Teacher observations~ Relevant information provided by

parents

Manifestation Analysis

•Whether conduct was~ Caused by, or ~ Had a direct and substantial

relationship to, the child’s disability

OR

•Conduct was direct result of failure to implement the IEP

If Behavior WAS Manifestation

•Return child to prior placement unless~ Agreement~ Drug/weapon/serious bodily injury~ Appeal and order

•Functional Behavior Assessment (FBA)

•Behavior Intervention Plan (BIP)~ Create if none~ Review and revise if in place

If Behavior WAS NOT Manifestation

•Must continue to receive educational services~ Which enable child to progress toward

meeting goals in IEP~ Must still provide FAPE based on

child’s individual needs

•Duration of placement in IAES is same as term of suspension for regular student

If Behavior WAS NOT Manifestation

•Services may be in Interim Alternative Education Setting (IAES)

•Determination of alternative setting SHALL be made by the student’s IEP Team. 615(k)(2)

If Behavior WAS NOT Manifestation (cont’d)

•FBA/BIP as appropriate to prevent recurrence of behavior

•Parent can request expedited appeal

•Stay put is IAES for any appeals

Drugs, Weapons and Injury

•Transfer without consent or hearing

•45 school days

Serious Bodily Injury

•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

Appeal

•Parent who disagrees with any decision on ~ Placement~ Manifestation determination

•School if maintaining current placement is substantially likely to result in injury to child or others

Expedited Appeal

•Resolution session (300.532(c)(3))~ 7 days from request~ Hearing may proceed if not resolved within 15

days after request

•Hearing~ 20 school days from request

•Decision~ 10 days after hearing

Stay put

•No manifestation: IAES

•Manifestation: placement at time of appeal

•After the child serves 45 days in IAES and a due process request is pending, child stays in IAES, rather than returning to reg. ed., until case resolved.

Multiple Appeals

Rules allow for succession of appeals

“if the LEA believes that returning the child to the original placement is substantially likely to result in injury to the child or to others.”

Basis for IHO decision

•Substantive grounds~ Failure to provide FAPE

•Procedural violations deny FAPE only if violations:~ Impeded child’s right to FAPE~ Significantly impeded parent opportunity to

participate~ Caused deprivation of educational benefit

Appeal Time Limits

•45 days to State Hearing Officer

•45 days to state court

•90 days to federal court

Attorney Fees

•Parent may recover reasonable attorney fees if prevails

•District may recover attorney fees under narrow circumstances

•Attorney fees must be awarded by a court –not IHO

Recovery by District

•From attorney when action was~ Frivolous~ Unreasonable ~ Without Foundation

•From attorney or parent if action presented for improper purpose~ Harass~ Delay~ Needlessly increase cost of litigation

Complaints - ODE

•Can make a complaint directly to the Ohio Department of Education.

•http://www.ode.state.oh.us/exceptional_children/children_with_disabilities/ComplaintForm.pdf

Complaints –OCR

•Office of Civil Rights

•File within 180 days (generally)

•Investigation~ Primarily structural issues~ Will not replace due process/judicial remedies

•Reference: OCR Case Resolution and Investigation Manual