January 16, 2014, by: !

!Mona Neter

Director of Special Education, Alhambra USD !

Cole Dalton, Esq. Dalton Law Group, PC

ACSA’s ECCS: iLearn, iGrow, iSucceed

DUE PROCESS BOOTCAMP

Overview

• What is due process?

• Who files?

• Why?

• What if I don’t want to?

DPH: What is it?• It’s a walk in the park

• It’s a week of your life

• It’s phone calls from nervous witnesses

• It’s a meeting with the teacher’s union

Who files?

DPH

DPH: Why file?

• identification, • evaluation, • educational placement, or • provision of an appropriate education.

On any matter relating to the:

(34 CFR 300.507; Ed. Code § 56501)

Due Process Issues

• The party filing a due process case has the burden of proof in the proceeding.

• The hearing may involve issues of both procedural and substantive due process.

• Substantive: whether the IEP was reasonably calculated to provide educational benefit.

(Schaffer v. Weast (2005) 546 U.S. 49 [126 S.Ct. 528])

(Board of Education of the Hendrick Hudson Central School District v. Rowley (1982) 458 U.S. 176)

Procedural Violations

Denial of FAPE from procedural violation only occurs where the the violation:

• impedes the right of a child to a FAPE

• significantly impedes the opportunity of the parents to participate in the decision making process

• causes a deprivation of educational benefits

(20 USC 1415(f)(3)(E); Ed Code § 56505(f)(2))

OAH’s Receipt of Request

When OAH receives a request for mediation and due process hearing, it will issue and

mail to the parties a “scheduling order and notice of due process and mediation”

generally within 48 hours.

Under state and federal law, when a school district files a request for mediation and due process hearing, the OAH has 45 days within which to issue its decision.

The timeline is shorter than in parent-filed cases because no resolution session is required. OAH has 75 days to issue its decision in a parent-filed case. D

ecisi

on T

imel

ine

Resolution Session

!

When a request for mediation and due process hearing is filed with OAH by a

parent, the school district is required to hold a “resolution session” within 15 days of

receiving notice of the filing.Waivers Dismissals

Cost vs. Benefits

Political Issues

MONEY $$$

TIME

RELATIONSHIPS

Notice of Insufficiency

!

Motion to Continue

!

Motion to Amend/File + consolidation

RESP

ON

SE T

O C

OM

PLA

INT

(20 USC § 1415(b)()7(B) & (c)(2); (Ed. Code § 56502)

• Issues alleged by the parent are not within the jurisdiction of OAH.

• Parents refused to participate in a resolution session convened by district.

• Student is not a resident of the district.

• Parents fail to prosecute the case.

Response To Complaint: Motion To Dismiss

(See, Student v. Mt. Diablo USD (2011) OAH Case No. 2010061370)

Parent can file a motion to determine the stay put placement of their child during the pendency of the hearing procedures.

Mot

ion

For

“Sta

y Pu

t”

The Case is Proceeding

What if I don’t want to go?

Witness Interviews

When Why How

Where What...should they bring?

Document Review

Preparing Witnesses

• Your background

• Your acquaintance with the student.

• What occurred at a specific time or place (e.g., at an IEP team meeting or an assessment).

• Other relevant information.

Mediation

•OAH shall complete mediation within 30 calendar days after request for mediation and due process hearing is filed by the district. !

•Both parties can agree to extend time for completing mediation.

(Ed. Code § 56043(q))

Other Forms of Resolution

• Voluntary Settlement Conference

• Voluntary Prehearing Request For Mediation Conference

Statutory Settlement Offers

AKA Limiting Attorneys’ Fees

Why You Need To Consider This Now

Subpoenas

(5 CCR § 3082(c)(2))

Of People or Things

Former Employees

NPA Employees

Notice of Representation

• The other side must know you’re being represented by an attorney “at least 10 calendar days prior to hearing, pursuant to subdivision (a) of Section 56507.”

(Ed. Code § 56043(t))

10 Day Disclosures

The other side must be informed of the issues to be decided at hearing and the proposed resolution, at least 10 calendar days prior to the hearing.

(Ed. Code §§ 56505(e)(6), 56043(u))

Prehearing Conference Statement

File and serve at least 3 business days prior to the prehearing conference

Notice of Witnesses & Evidence

at least 5 business days prior to the hearing

(Ed. Code §§ 56505(e)(7), 56043(v))

Cost vs. Benefits - Revisited

Political Issues

MONEY $$$

TIME

RELATIONSHIPS

Are you sure? Because your Hearing is about to start….

Oral Evidence

!

Oral evidence shall be taken only on oath or affirmation.

(Govt. Code § 11513(A))

Oral Evidence

NOTE: listening to opposing testimony can be incredibly painful

Your Case Is Only As Good As Your Witnesses

Your Case Is Only As Bad As Your Witnesses

“My old drama coach used to say, ‘Don’t just do something, stand there.’”

Witn

ess

Test

imon

y

Clint Eastwood

Witness Testimony

After the District completes its questioning, the family’s representation will question you.

The hearing officer may also ask you questions for clarification. When you have finished

testifying, the hearing officer will thank you for your appearance at the hearing.

At that time, you may leave the hearing room.

you’ve called your witnesses,

you’ve introduced your exhibits;

you’ve cross-examined opposing witnesses;

what’s left?

Evid

entia

ry R

ight

s of

Par

ties

(Govt. Code § 11513(b))

impeachment evidence; or

rebut evidence introduced against one of your witnesses

if respondent does not testify in his or her own behalf he or she may be called and examined as if under cross-examination

Evid

entia

ry R

ight

s of

Par

ties

(Govt. Code § 11513(b))

When Can We Make The Other Side Stop Talking?

The presiding officer has discretion to exclude evidence if its probative value is substantially

outweighed by the probability that its admission will necessitate undue consumption

of time.

(Gov Code §11513(f))

Hearsay v Administrative Hearsay

1. Is it a statement? 2. Was it made out of court? 3. Is it being offered to prove the truth of the

matter asserted? (Evid. Code §1200(a))

A doctor’s report stating that Jill has ASD, the doctor is not testifying.

(Gov. Code, § 11513(d); (Student v. Downey (2005) OAH Case No. 2005070481))

Privilege 11513(e)

• The rules of privilege shall be effective to the extent that they are otherwise required by statute to be recognized at the hearing.

(Newport-Mesa Unified School District (1986) 508 IDELR 263 [doctor patient privilege; see also, Capistrano Unified School District (2010) OAH Case No.

2010050368 [statements made during settlement discussions)

Attorneys’ Fees Awarded to Parents

• Court awarded $65,803 to parent, of $120,784 in attorneys’ fees.

• Parent only prevailed on 2 of 24 issues.

• Most critical factor in assessing attorneys’ fees is the degree of success, not number of issues.

(S.A. v. Patterson Joint Unified School District (E.D. Cal. 2010) 55 IDELR 11)

Attorneys’ Fees Rarely Awarded to Districts

Fees were recoverable where litigation continued after the frivolous nature of the litigation was obvious. (Bridges v. Barrie (D.D.C. 2010) 54 IDELR 186)

Appeals

(Ed. Code §§ 56505(k), 56043(w))

An appeal of a due process hearing decision shall be made within

90 calendar days of receipt of the hearing

decision.

Walk Aways

Thanks for

coming !

Good Bye!