News Alert: Stay Put Awarded to Preschooler with Autism and Apraxia

Today, Mandy Favaloro of A2Z Educational Advocates won a stay put order from the U.S. District Court for the Central District of California in a factually complicated case involving a preschooler with Autism and Apraxia. The victory is a small victory, in that it means only that the child continues to recieve the disputed services during the time that our case is going forward, and does not determine what the ultimate outcome will be. But it is a significant victory in this case nonetheless, not only for this family, but on the bigger issue of stay put in general.

Stay put means that a school district must maintain a student in their "current educational placement" during the pendency of a dispute (at the administrative and subsequent judicial levels) between parents and the school district. "Then current educational placement" refers to that which was in place, agreed upon and implemented (usually) prior to the dispute arising.

In the 9th Circuit (and in some, but not all, other circuits), case law establishes that stay put acts as an "automatic injunction." In other words, when a case is pending, it is a given that the child will continue in his / her current program. Parents filing for an order determining stay put need only establish what the student's current program is, and are not required to establish all of the factors that would be considered ordinarily when a party to an action is seeking injunctive relief.

Sounds simple, right? And in many cases it can be. A child is in a general education class, which has been written into her IEP, consented to by the parents, and implemented. The District proposes to change Child's placement to a special education class, and parents disagree. When parents file for a due process hearing, it is "automatic" that the child should continue in the general education classroom during the pendency of the dispute.

Not all cases are so simple, and determining what makes up a child's "current educational placement" can in fact involve many different factors. Such was this case, and the daunting challenge facing Mandy and the A2Z team has been to effectively piece together rules and holdings from various cases in order to establish the totality of what should be stay put for this particular child.

This case is complicated, in part because the IEP "in dispute" is the child's initial IEP when he transitioned to the school district at age 3. It is complicated because there has never been a fully agreed upon and implemented IEP. Parents agreed upon some parts of the initial IEP and a subsequent IEP, but not all, and District implemented some, but not all, of what parents consented to. It is complicated by the fact that now, there is a decision from an ALJ in an underlying due process case, a decision that finds in favor of parents on some issues and the district on others; a decision that is being appealled by parents now, but only partially. The fact that the decision ordered reimbursements for specific services funded by the parents in the past throws another kink into the analysis, as does the fact that the order for prospective services is less clear than the order of compensatory remedies.

So what is stay put and how do we determine it in such a complicated case? Here are the issues and what we can learn from this case:

(1) Unilateral Placement (i.e. private school specifically) at Parents Expense Does Not Automatically Prevent Parents from Accessing Stay Put

In this case, stay put includes a program that is funded in part by parents and in part by the District. Because parents did not win on their unilateral placement argument (specifically as to the private school itself) at the due process level, and are appealing that finding, there is no requirement that the District would have to now pay for the private school during the pendency of the dispute. It is important to note that, contrary to the District's assertion, Parents did not ask for District funding for the private placement as part of stay put. His "status quo" at the time of the appeal included placement in the private school at parent expense. It is also important to note that the fact that parents decided to maintain that status quo while they appealed the finding regarding the private school of the ALJ did not prohibit them from receiving other services funded by the district as part of stay put.

(2) Continuation of Agreed Upon and Implemented Services is Necessary

The basic principles of stay put require that those components of the program to which the District and parent have agreed, and have been "in place" prior to this dispute, must continue to be provided. Here, there were services from the child's initial IEP which had been agreed upon and implemented, and those services must continue. The District argued that because the ALJ did not agree with Parents regarding the private school (unilateral placement) that they sought, and yet Parents chose to continue in that program, the Student was no longer entitled to services. The Court disagreed, and said that inherent in the stay put provision is the requirement that the District continue those services that were already agreed upon and in place.

(3) "Otherwise agree" includes that which is ordered by an ALJ (and not appealled by parents)

Stay put typically includes the program identified in a child's previously agreed upon IEP, unless parents and the district "otherwise agree." This court found that "where the due process hearing officer 'agrees with the child's parents that a change of placement is appropriate, that placement must be treated as an agreement between the State and the parents' for purposes of stay put." (citing 34 C.F.R. 300.518(d)). Further, "an order for reimbursement predicated on a finding that a previous IEP was substantively inappropriate 'constitutes a change in the child's current educational placement for purposes of interpreting [stay put].'"

Here, the ALJ's order included specifically identified reimbursements for services funded by parents as a result of their dispute with the district's offered program. The school district attempted to argue that no "agreement" had occurred because the ALJ disagreed with parents on some aspects of what they sought (like the private school).

The Court found that the District's argument completely ignored the fact that the District is "required to provide those special education and related services that are not in dispute," and further stated:

The IDEA's implementing regulations require only that the ALJ agree with the
parents that "a change of placement is appropriate," not that
all changes are appropriate, in order to establish an agreement between the
State and the parents for the purposes of stay put."

Ultimately, the court ruled in parents favor and ordered that the District fund the services, while parents continue to fund the private school placement. The services that make up this child's stay put include a combination of those agreed to from the initial and subseuqent IEPs (and thereafter implemented by the District) and of those that the parents previously funded and were awarded reimbursement for in the ALJ's decision. As to the latter, the stay put order specifically identifies the service providers, as they were identified specifically in the reimbursement order by the ALJ, meaning that in this case, the student's stay put will continue to include his current providers specifically.

Mandy did an outstanding job piecing together cases and rulings to make a strong and effective argument in this very complicated stay put case. As this is her very first District Court case as an attorney of record for parents, I think she deserves much props for this outcome. It stands to show that with zealous and dedicated advocacy, coupled of course with a situation where the law is in Parents favor (and someone with the legal savy to be able to show that it is in their favor, even when it's complicated), a positive result CAN happen for students and parents!

A redacted copy of this decision will shortly be posted on A2Z's website.

Due Process Cases: Insufficiency of Complaints

When parents disagree with the IEP proposed for their child, with the denial of eligibility for special education, with evaluations conducted by the District, etc, they have the right to present a complaint to initiate "due process" in order to resolve their dispute. The 2004 amendments to IDEA added language specifying the contents of a complaint that is filed to initiate due process. Additionally, language was added that allows school districts (or the responding party) to assert that the complaint was not sufficient; i.e. that it does not include all of the required information. Hearing officers / ALJ's are charged with determining the sufficiency of the complaint. Specifically, the IDEA states that "a party may not have a due process hearing until the party, or the attorney representing the party, files a notice that meets" these requirements. See 20 U.S.C. section 1415(b)(7)(B).

This places a burden on the filing party, which especially affects unrepresented parents who may be unfamiliar with the requirements and technical aspects of the process. If parents need assistance with this process, it is advisable that they seek out a special education attorney.

What information is required for a complaint to be "sufficient"?

IDEA (at 20 U.S.C. section 1415(b)(7)(A)(ii)) requires the following to be included in the complaint:

• Name of the child
• Address of the residence of the child
• Available contact information if the child is homeless
  
• Name of the school the child is attending
• The Issue / Problem presented: "Description of the nature of the problem of the child relating to such proposed initiation or change..."
• The Facts: "including facts relating to such problem..."
• The Proposed Resolution of the Problem

What is a "Notice of Insufficiency?"

Many school district attorneys now have a practice of filing a document, sometimes referred to as Notice of Insufficiency" to assert that the parents' complaint was not sufficient / does not contain all of the required information. Most often, these filings will allege that the complaint did not specify sufficient facts related to the problem, or did not clearly identify what the specific problem is.

An assertion that a complaint is not "sufficient" usually comes down to something subjective, and is not a clear-cut case of required information being totally left out. It usually involves how the information is presented / explained as to the facts, the issue or the proposed resolution.

Here are some examples of arguments we have seen regarding insufficiency of a due process complaint:

• Not enough facts to explain why the proposed IEP would not meet student's unique needs
• Issue regarding inappropriateness of goals not clear enough for District to determine what areas Parents believed were not addressed
• Issues relating to violations of procedural safeguards do not include sufficient facts to clarify basis for the allegations
  
• Proposed resolutions do not include information regarding specific amounts sought for reimbursement, compensatory hours, etc
• Proposed resolutions are not clear as to what prospective program parents are seeking

Sufficiency requirements in many states have increased exponentially the burden on parents filing for due process, and made it much more difficult for parents to go through this process unrepresented, thereby decreasing access to due process. Here in California, this has been the subject of much discussion among the parent-advocacy community. Some school district representatives have a practice of sending out a Notice of Insufficiency on every case, and we have even had one tell us she would be filing such a Notice even though she had admittedly not yet even reviewed the complaint's contents.

In at least one state, action has been taken to attempt to alleviate some of this burden. Click here to access the state of Ohio's information about a settlement agreement reached on this issue. What is informative in the "order of settlement" is the language in regards to what "sufficiency requirements" should mean:

[The IDEA] does not require a due process complaint to reach the level of sufficiency and detail of a complaint in a court of law.
That the purpose of the sufficiency requirement is to ensure that the other party will have an awareness and understanding of the issues forming the basis for the complaint, and
That due process complaints should be construed in light of Schaffer vs. Weast... and Escambia County Board of Education vs. Benton...
IHO's will be instructed that the standard in Schaffer and Escambia for reviewing the sufficiency of a due process request is a minimal pleading standard and is lower than the standard for reviewing complaints in court.

Ohio also now posts redacted copies of decisions / orders determining sufficiency of complaints, in compliance with the terms of this settlement.

What happens next?

If the responding party files a Notice of Insufficiency, the ALJ / Hearing Officer should rule on whether or not the complaint is sufficient. As stated, this often comes down to a subjective issue - it isn't usually the case that a child's name or address, for example, was left out. Therefore, the ALJ has to look at the complaint itself and determine if there is enough information in the "facts," "issues," and "resolution" to give the responding party notice of the basis for the complaint. If a complaint is not sufficient, the hearing will not go forward until a sufficient complaint is filed, meaning that either the case will be dismissed and have to be refiled, or that the filing party will be allowed by the ALJ / Hearing Officer to amend the complaint.

Can Parents file a Notice of Insufficiency?

Yes. If a school district files a request for due process, the the parent is the "responding party." The school district's complaint is also subject to sufficiency requirements in terms of what information must be included. If a parent / parent's representative believes that the information is not sufficient, he/she can also alert the ALJ / Hearing Officer and ask for a determination of sufficiency.

What about forms, etc for filing for Due Process?

The IDEA requires state educational agencies to develop "model forms to assist parents and public agencies in filing a due process complaint." 34 C.F.R. 300.509. Thus, many school districts / local educational agencies have forms that they provide parents to fill out when a parent disagrees and wishes to file for due process. The state educational agency may also provide such a form. Presumably, such a form would contain boxes or lines for each of the required areas, thereby guiding parents to ensure that all required information is included. Note that just because a school district or state agency provides a form, does not mean that a parent must utilize the form to file a request. Rather, any document that comports with the requirements under IDEA should initiate the process.

Here are some useful links to examples from various state educational agencies:

Connecticut
Illinois
Kentucky
Maine
Maryland
Michigan
Missouri
Neveda
New Jersey
Texas
Vermont

*note: the links in this list provide a sampling of state pages directly related to due process request forms. For a comprehensive list of state special education department websites in general, check out the list provided by the Council of Parent Attorneys and Advocates at this link.

Parents can seek out additional information from a special education attorney or experienced advocate, their state educational agency, or their local school district.

Due Process Cases: What is Mediation All About?

Mediation is a voluntary alternative dispute resolution process in which an impartial third party ("mediator") helps the parties to resolve their dispute but does not and cannot impose a solution.

Mediation Under the IDEA:

States are required to "ensure that procedures are established and implemented to allow parties to disputes involving any matter, including matters arising prior to the filing of a complaint... to resolve such disputes through a mediation process." 20 U.S.C. section 1415(e)(1).

States must "ensure that the mediation process (i) is voluntary on the part of the parties; (ii) is not used to deny or delay a parent's right to a due process hearing...; (iii) is conducted by a qualified and impartial mediator who is trained in effective mediation techniques." 20 U.S.C. section 1415(e)(2).

What to Expect:

A mediation session usually happens fairly shortly after the 30 day "resolution period" contemplated for in the IDEA, or in some states may even be available during that time period. Note that in some instances, parties may not have both a resolution session and a mediation. Mediation is voluntary, so the parties can decide not to attend / participate. Unless each side is clearly not going to attempt to reach an agreement, mediation is worth your time to attempt to reach a settlement.

At the start of the mediation, an effective mediator should describe the process to parents and their representatives. Typically, a mediator will let the parties know that mediation is confidential, and that what is discussed in mediation can't be put into evidence at a subsequent hearing. A mediator should also explain any rules for the process, explain whether all parties will remain in one room or "caucus" separately, and answer any questions.

Sometimes, it is helpful for the parties to give a brief statement that provides an overview of their position and of what they are seeking in a settlement agreement. This is both for the benefit of the mediator - who needs this information to effectively guide communication - and is for the other side - who needs to hear what your position is and how strong you are in it.

A mediator's role is essentially to help with the communications between the parties. While there are many theories of effective mediation techniques, in terms of whether the mediator is simply relaying information or is more involved in helping to brainstorm solutions, a good mediator will always be able to effectively communicate each party's position and offer to the other side.

Many special education disputes are resolved through mediation. Ideally, mediation also allows for the two sides to communicate and air their disputes so that parents and the district may have a chance in the future of a productive relationship.

Due Process Cases: What is a Resolution Session?

"Informal Dispute Resolution" can refer to many different things in the context of special education cases. Many school districts may have their own informal dispute resolution ("IDR") processes, in which a parent can meet with or speak with someone about their disagreements without having to file for a due process hearing or go to a mediation. Even in the context of a due process case, there is an opportunity to "informally resolve" the issues between the parents and the district.

Definition of "Resolution Session"

A resolution session is a process by which parties meet without a neutral third party and attempt to resolve their dispute.

Rules / Statutory Basis

The Resolution Session and Informal Resolution Period were created in the 2004 changes to IDEA;

"Prior to the opportunity for an impartial due process hearing... the local educational agency shall convene a meeting with the parents and the relevant member or members of the IEP Team who have specific knowledge of the facts identified in the complaint
(i) within 15 days of receiving notice of the parents complaint;
(ii) which shall include a representative of the agency who has decision-making authority on behalf of such agency;
(iii) which may not include an attorney of the local educational agency unless the parent is accompanied by an attorney; and
(iv) where the parents of the child discuss their complaint, and the facts that form the basis of the complaint, and the local educational agency is provided the opportunity to resolve the complaint, unless the parents and the local educational agency agree in writing to waive such meeting or agree to use the mediation process in lieu of the resolution session"

20 U.S.C. section 1415(f)(1)(B)

Any agreement made in the resolution session must be in writing, is enforceable, and can be voided by either party within 3 business days of execution. 20 U.S.C. section 1415(f)(1)(B)(iii)&(iv).

What to Expect:

An informal resolution session is to be held within 15 days after parents filed for due process. The statute allows for a 30 day "resolution period" meaning that although the resolution session must occur within the first 15 days, the district has an opportunity to try to resolve the dispute within 30 days before the time period for the hearing and a decision commences. If a district files for due process against a parent an informal resolution session does not have to be held and the 30 day period does not toll.

A school district representative will most likely contact the parents prior to the deadline to schedule a resolution session (sometimes referred to as an "informal"). Parents are required to attend the resolution session, unless the parties both agree in writing to waive it. If the school district doesn't agree, and parents still refuse to participate, then all of the applicable timelines stop until parents agree to go to the informal.

Whether attorneys or advocates attend the resolution session with parents is a case-by-case determination. There are pros and cons of having and attorney or advocate there, but many parents feel that they would be easily bullied if they went alone. The law anticipated that attorneys would not be involved in this process, and therefore parents cannot get reimbursed for an attorney's time spent attending the resolution session.

A resolution session is sometimes convened with only the parents and a district representative, like a special education director. However, sometimes the school district will have many participants, including members of the IEP team.

Even if a district does not typically settle cases at this level, the informal resolution process can be helpful to the overall settlement negotiations in a case. Often, the fact that a "decision-maker" has been forced to immediately get involved in the case, to meet with the parents first-hand, and to familiarize themselves with the facts contained in the complaint, can be very effective. Sometimes, if a subsequent mediation is held, it may be much more productive because it is not the first time the parties meet, and the "decision-maker" will at least have already read the complaint.

Fast Fact Friday: Alternative Dispute Resolution

"Alternative Dispute Resolution" encompasses many processes by which parties resolve disagreements without going through a trial. There are many benefits to ADR in general, which include saving time and money for the parties, and possibly achieving better and more participant-oriented results. ADR has grown increasingly popular in all kinds of cases, due in part to the realization that it could lead to faster results than if parties waited to go through a hearing or a trial in an over-burdened court or hearing system.

In special education, ADR includes the following:

• Informal Dispute Resolution processes established within the procedures of the local school districts, allowing for parents and the district to discuss disagreements and possible solutions without filing for due process
• Resolution Sessions under IDEA 2004, which are held within 15 days of when a parent files for due process, and include parents and district representatives, possibly IEP team members
• Mediation, a voluntary process in which a neutral third party mediator, assigned through whatever system is established in your state, meets with the parties to try to help them resolve their disagreement and reach a settlement
• Settlement negotiations and written settlement offers, which may occur at any point during the case between the parties and which allow for the parties to attempt, independently of a third party, to reach a negotiated settlement
  

Fast Fact Friday: The 5 Day Rule

We are entrenched in preparation for a due process hearing this week, so I thought a quick overview of one of the "rules" for a hearing would be appropriate as a Fast Fact Friday.

The IDEA's "5 day rule" for disclosure of evaluations states that:

"(A) Not less than 5 business days prior to a hearing conducted pursuant to paragraph (1), each party shall disclose to all other parties all evaluations completed by that date, and recommendations based on the offering party's evaluations, that the party intends to use at the hearing.
(B) A hearing officer may bar any party that fails to comply with subparagraph (A) from introducing the relevant evaluation or recommendation at the hearing without the consent of the other party."

The requirement to disclose evaluations and recommendations is mandatory for both parties. For parents and their representatives, this means that any independent educational evaluations, private assessments, expert observations / reports, etc that you have obtained and will be relying upon in the hearing must be provided to the school district and/or their legal representatives 5 business days prior to the start of the hearing. This will most likely require advanced planning and communication with any experts / evaluators to make sure that any pending evaluation reports will be available to you in enough time to meet this requirement.

The remedy / punishment for failing to meet this requirement is discretionary for the hearing officer. The hearing officer is permitted by statute to bar introduction of the "relevant evaluation or recommendation." This does not mean that the hearing officer must bar the evidence. Note that the statute allows for barring not only the evaluation (i.e. the report) but also the recommendation, which could be interpreted to mean that the hearing officer can bar testimony from that expert about their recommendations for the student's program (i.e. their expert opinion).

Private Placements Part 3: Locate an Appropriate Unilateral Placement

In a unilateral placement case, when parents are seeking reimbursement for a private school placement, parents must demonstrate that the private placement the child is attending is "appropriate" for that child. This presents what the courts have deemed a "stringent but not impossible" task. Parents meet this burden by demonstrating that the private placement meets the child's needs and provides the child with educational benefit. Courts will look at whether the placement reasonably serves the child's individual needs.

This analysis is obviously fact-sensitive and varies in every single case. The "appropriateness" of the private placement is something parents need to keep in mind at every stage of this process, from deciding to disagree with the district's proposed placement, to searching for an appropriate alternative, to deciding if/when to seek reimbursement.

Things to Consider:

There are many things parents can consider when deciding on a placement. Its helpful to start out with a list of your child's unique needs as a starting place so that you can keep in mind how the different components of various options may (or may not) meet those needs. Then make a list of the things that would be required to be in a program for it to be appropriate for the child. Utilize your experts and evaluators during this stage if possible.

Examples of factors to think about include:

* Class size: does your child need a small class size with fewer peers? higher teacher:student ratio?

* Campus size / setting: does your child get overwhelmed in a large campus setting? are there safety concerns that may arise in larger settings?

* Specialized Instructional Methods: what specialized instructional programs does your child need? for example, does your child need specialized instruction for reading and is it available at this placement?

* Behavioral Components: what type of behavioral program does your child require? will class-wide behavior modification work? does your child require staff with certain training or experience to address his/her behavior?

* Social Skills Components: does your child need social skills instruction as part of a classroom curriculum component? in-the-moment training and facilitation throughout the day? does your child need access to appropriate social-models in terms of peers?

* Training of Staff: does your child require access to staff with specific training or experience working with kids with particular needs / disabilities?

Thinking about topics like these will help parents to ensure that if they are in the situation of having to choose a private alternative for placement, that placement is one that meets the child's needs so as to be considered "appropriate" when they are later seeking reimbursement.

Remember that the appropriateness of the private placement is only one factor, and only applies if the District's proposed placement is found to be inappropriate. While making a list of your child's unique needs and considering these factors when analyzing placement offers and options naturally will lead to some comparison between the District's placement and the private one, remember that comparing them is not the analysis the court will use. It is not enough simply to show that the private placement is "better," because ultimately you must show that the District's placement was not appropriate.

Private Placements Part 2: When an alternative may be necessary

Unilateral placement cases are highly fact-specific and each case is unique. It is advisable that a parent seeking to place their child unilaterally and obtain reimbursement for the costs of that placement obtain assistance from a special education attorney or highly experienced advocate from the initial stages of this process. An attorney or advocate can assist the parent with following all of the necessary steps in the process along the way.

The previous post in this series talks about when and how a parent gives notice to the school district of their decision to place their child unilaterally at a private school. Prior to reaching the point of providing notice, parents must go through the process of determining that a private placement is necessary for their child. The case law recognizes that such a determination is made at the parents' financial risk; that is, there is no guarantee that the parent would ultimately be reimbursed. Therefore, the determination to take such a step should only be made when it is necessary, and must be done cautiously. This second part of the "private placement" blog series discusses factors and situations that may give rise to such a determination.

Parents have attempted to work with the District to find another suitable alternative

Generally, parents should not rush into a unilateral, private placement without first trying to work within the District's system to locate an appropriate alternative. This doesn't mean that every child has to necessarily "try" the District's proposed classroom before the private placement occurs. But it does mean that parents should work cooperatively with the District, attend and participate in IEP meetings, voice their concerns about placements proposed by the District, go and observe District programs when possible, and provide the District with input from private experts or independent evaluators. If the District has not been given the "opportunity" to provide the student with an appropriate program, ultimately it is likely that a judge will find that reimbursement is not appropriate.

Private placement should be considered, therefore, in situations where the parent has actively and cooperatively participated in IEPs and placement discussions and has made efforts to work with the District to secure an approrpiate publicly funded placement. Many parents only turn to a unilateral placement after visiting / observing all of the recommended placements by the District, having multiple meetings with the District about placement, voicing their concerns, etc, and then determining that there is no appropriate option within the District's alternatives and private placement is therefore necessary. To read an example of such a case, see Board of Education of the City School District of the City of New York, 39 IDELR 56 (SEA NY 2002).

The District delayed completion of or implementation of an appropriate IEP, thereby denying educational benefit

In some circumstances, the district's unjustifiable delay in completing or implementing an IEP may cause such a loss of educational benefit to the student as to support the need for a private placement and reimbursment to parents. Consider whether the district has failed to complete an IEP at all, leaving it "in limbo" such that the student has no program in place. If this has happened, parents may be faced with a choice between leaving their child with no specialized program, or unilaterally placing the child in an appropriate program and seeking reimbursement. If the issue is not development of the IEP, but implementation, it is important to look at whether the component that has not been implemented was essential to the IEP, and the lack of that component meant that the program itself was no longer appropriate. Again, parents are then faced with a difficult choice between allowing their child to continue in the inappropriate program or unilaterally placing him/her. The cases on this issue are very fact specific, so it should not be simply assumed that any time the district fails to implement the IEP, unilateral placement will be justified. Again, it would be a good idea to have an expert opinion regarding the impact of the delay or non-implementation. For examples of such cases, read Board of Educ. of Chatham Cent. Sch. Dist., 39 IDELR 144 (SEA NY 2003 and Ms. M ex rel K.M. v. Portland Sch. Comm., 39 IDELR 33 (D. Me. 2003).

Student has made no progress in the District's program

When a student has already been in a specific program offered and provided by the school district, and that program has proved to be inappropriate or ineffective, it may be time for parents to consider an alternative. This scenario necessitates looking objectively at the data and information about the child to adequately determine if there has been progress or not, and therefore usually requires an expert's opinion. If the student has been in the program / methodology, ask yourself if he/she has made little to no progress in the specific area being addressed. Also, it is important to look at what the District knew or should have been aware of with regards to the lack of progress. Is this a situation where ongoing progress reports, IEP documents and other data were demonstrating for a significant amount of time that no progress was being made, yet the district ignored such data and continued to offer the same kind of program? Or is it a situation where there was no clear data on an ongoing basis, so maybe no one was aware of the lack of progress until the child was reevaluated much later? An alternative placement may be more appropriate in a situation where not only was the district's program ineffective and inappropriate, but the district also continued to offer said program despite indication that it wasn't working. For an example of such a case, read Draper v. Atlanta Indep. Sch. System, 108 LRP 13764 (11th Circuit 2008).

In some cases, there may be data and evidence that not only establishes lack of progress, but actual regression in some areas. If the child is regressing, rather than progressing, under the district's program, then parents may need to look for an alternative. In these situations, expert opinion would be critical to establish regression. Also, you should consider factors such as whether the district knew the child was regressing, how they responded, and whether they are now offering something different. Fo an example, read J.P. v. County Sch. Bd. of Hanover County, Va 46 IDELR 133 (E.D. Va. 2006).

District has offered a prospective placement that is not appropriate

Commonly, parents consider unilateral placements because of a dispute about what the district has offered prospectively. When the district's IEP and placement offer will not meet the child's needs or enable him/her to obtain educational benefit, the parents may need to consider rejecting that offer and unilaterally placing the child. Again, this is a very fact sensitive scenario, and the parents must consider the IEP offer carefully. An expert who can not only evaluate the child's unique needs, but also observe the proposed placement will most likely be necessary. It is important to look at what the child's identified unique needs are and evaluate the proposed IEP on whether or not it will meet those needs. Consider if there is a specific type of setting, for instance, that the child requires, or whether the child needs a therapuetic component to address his/her social / emotional needs. The totality of the factors will be considered in these situations to determine if the district offered FAPE, and ultimately if the parent is entitled to reimbursement for the unilateral placement. For examples of such cases, read Lamoine Sch. Comm. v. Ms. Z. ex rel N.S. 42 IDELR 172 (D. Me. 2005) and Board of Educ. of the City Sch. Dist. for the City of N.Y. 35 IDELR 28 (SEA NY 2001).


Remember that whatever situation arises that causes parents to consider a unilateral placement, parents need to be careful and consider all of the district's options before making such a decision. Consult with experts, providers and persons who know your child. It may also be necessary to consult with a special education advocate or attorney.

The next blog in this series will discuss another issue in private placement cases, which is consideration of whether the unilateral, private placement is appropriate.

IDEA Fairness Restoration Act

In 2006, the Supreme Court issued a decision in Arlington Central School District vs Murphy finding that parents who were prevailing parties in a due process hearing or subsequent litigation were barred from recovering expert witness fees. Around the same time period, the Supreme Court issued a decision in another case that clarified the burden of proof in special education disputes; a ruling that has subsequently placed that burden onto parents in almost all cases arising under the IDEA.

The Unfairness Problem

School Districts can spend tax dollars to employ and hire experts to provide testimony in due process hearings and litigation. School Districts use their resources to fund psychologists, specialists, technical experts, etc to provide testimony related to programs, placements, services, assessment findings, and a child's unique needs.

Most parents don't have the resources to access expert witnesses and bear that financial burden. Experts are necessary to be able to have a fair change at prevailing in a due process hearing and litigation! If the School District is putting on testimony by psychologists and specialists, and the parents are unable to, it will be extremely difficult for parents to meet their burden of proof.

This makes due process unfair and often not affordable. Advocates and Attorneys see this problem in real life on a daily basis. We see parents who are watching their child struggle and fail in a program that is not appropriate, with insufficient services, or without proper supports in the classroom. The school district has psychologists and specialists who are "backing" the program. Parents need access to experts who can testify about what services and programs are required to meet those students' unique needs. We see kids who are completely denied eligibility for services. Parents cannot possibly challenge that determination without an expert who can testify about the child's diagnosis and how it impacts their ability to access their education. We see kids who are on their way to expulsion, and school district "experts" who claim that their behavior was not related to their disability. Parents need the ability to utilize experts to testify as to how and why the behavior is a manifestation of the disability.

If the due process proceedings under the IDEA are not affordable, and therefore not accessible, then parents are denied their rights and children are ultimately denied a FAPE. The underlying IEP process and decision-making regarding a child's program becomes more and more unfair and one sided, because the parents' right and ability to challenge the IEP and the school district's decisions becomes meaningless.

The Solution?

The IDEA Fairness Restoration Act seeks to override the Supreme Court's ruling in Murphy, and thereby restore the ability of parents who prevail in due process or litigation to be reimbursed for expert witness fees incurred during the process.

The Act will level the playing field for parents, enabling them to have a fair chance in a meaningful process to seek a remedy when a child is denied FAPE by the school district.

For more information about the act, including the full text and a brochure, check out http://www.copaa.org/news/IFRA_intro_2009.html. Over 185 disability organizations support the IDEA Fairness Restoration Act, which is a bipartisan bill. You can also read more about it at http://www.wrightslaw.com/nltr/09/nl.0630.htm

What you can do

Call your congressperson and ask them to support the IDEA Fairness Restoration Act. July 9th is the national call in day! You can call your representative and tell them why the Act is important, and why it needs to pass to ensure that parents have meaningful access to due process procedures.

Find out who your congressperson is and how to reach them directly at www.house.gov. You can also call the switchboard at 202-224-3121 and ask to speak to your congressperson. Remember to ask for the Education Aide in order to speak to a person who is interested in this issue! Leave a message, and call back, if you need to!

Private Placements Part 1: Notice of Unilateral Placement

Parents may obtain reimbursement for the costs of private school placement if the Court or Hearing Officer finds that the school district failed to make a free appropriate public education available to the student in a timely manner prior to the student's enrollment in the private school, and that the private school placement was appropriate. Parents considering this option need to consider the notice requirements under the IDEIA. Notice to the school district will be one of the many factors the Court or Hearing Officer will consider in determining if reimbursement is appropriate, and if there should be any reduction in the amount to be reimbursed.


Under the IDEIA, reimbursement can be reduced or denied if:
(1) At the most recent IEP meeting parents attended prior to removal from the school district, parents did not inform the IEP team that they were rejecting the placement proposed by the school district, state their concerns, and state their intent to enroll their child in private school at public expense;
OR
(2) At least 10 business days prior to the removal, parents did not give written notice to the school district of the fact that they reject the proposed placement by the school district, their concerns, and their intent to enroll their child in private school at public expense.
See 34 C.F.R. 300.148(d)

Notice to the school district is one consideration under the equitable factors that may affect the outcome of unilateral placement cases. The basic idea is that the parent needs to let the school district know about their concerns, their disagreement with the offered placement, and their intent to enroll the child elsewhere. This is based upon a fairness principal - if you are ultimately expecting that the District is going to reimburse you for that placement, it is only fair that you put them on notice of that intention and expectation! Although their are exceptions to this rule and certainly different interpretations and findings, parents in general need to provide the District notice and comply with this requirement in order to preserve their right to seek reimbursement. Ultimately, failure to give notice at the IEP or in writing may result in a finding that parents were withholding information and thereby acting in bad faith.

At the IEP Meeting

Parents can give notice at the IEP meeting, but should be careful not to seem as though they came into the meeting with a firm committment to enrolling their student in the private school and unwillingness to consider what the District has to offer. If notice is being given at the IEP meeting, parents should

1. Carefully articulate their concerns about the school district's offer AFTER the school district has had the opportunity to develop the IEP and make an offer of placement. Make sure to ask questions and participate in the discussion about the placement, and then provide clear information to show that you considered the offered placement but did not find it to be appropriate.

2. Clearly state that you are rejecting the school district's offered placement because it is not appropriate, and not because you simply prefer a private placement.

3. Clearly state that you intend to enroll the student in a private placement. Indicate why you think this placement is appropriate. State that you will want the District to reimburse for this placement because you believe it is necessary to provide your child with a FAPE.

4. Don't fall into a "parentally placed private student" trap. Many times the District will try to get you to sign a document that states that you have been offered a FAPE and choose to enroll your child in a private placement anyway. The District will then use this to identify your child as a privately placed student. Emphasize that you are not rejecting the District's offer because it is not FAPE, and that therefore you will not agree to designate your child as a privately placed student because you believe the District still has an obligation to him/her in terms of his educational program.

Written Notice

Parents can also give notice in writing directly to the school district. If written notice is being provided, parents should

1. Clearly state in writing that they disagree with the District's offered placement / the current placement that the child is in. The letter should state that the parents no longer feel this placement is appropriate.

2. Briefly state concerns regarding the placement and other issues as appropriate. Give reasons why the current placement is not appropriate.

3. Provide a date that the child will be removed from the district's program and the date upon which unilateral placement will begin. Remember that the notice must be given 10 business days prior to the removal from the district's program.

4. Specifically state that the parent will be seeking reimbursement for this placement. Parents should specify that they believe that the unilateral placement is appropriate and necessary to provide the student with a FAPE.

Why Not Do Both?

It is not a bad idea to provide notice in both ways. Although the strategy for a unilateral placement will vary on a case by case basis, remember that the ultimate goal is to make sure you give the District a heads up about the disagreement and the unilateral placement and allow them the opportunity to respond. If there is an IEP meeting happening, and you already know that you disagree with the District's placement and are seeking a different placement, you can give notice at that time, and then follow it up in writing. Sometimes, parents may know that they disagree with what the district is offering but don't know whether they are going to unilaterally place the child. You could still give notice that you disagree, and even that you are going to be seeking an alternative placement, and then follow it up with specific details in the notice letter. Remember, these facts will all be considered under the principles of "equity," or fairness, so think of it in terms of how you can be fair to the District by giving them notice rather than withholding information.

Ultimately, notice is just one factor among many in these cases, but unfortunately many unilateral placement cases do not come out in favor of the parents if the parents failed to give proper notice or withheld information from the District. For specific information on a case by case basis, it would be advisable for you to seek guidance from an attorney or experienced educational advocate as you go through this process.

Top Ten Ways to Protect Your Rights and Keep Your Sanity

By the time we meet with Parents they are usually so frustrated with a school district or an administrator that they are ready to cry or pull their hair out (their own or the administrator's). Here are just a few tasty tidbits that can keep you from losing your mind as well as protect your rights along the way.

10) Never sign anything before you have a chance to completely read the document. This goes for assessment plans, IEPs and even settlement agreements. Just because the district, an assistant principal or a teacher tells you something doesn't meant it is written in the document. Read it and then reread and then have someone else read it.

9) When in doubt write it out. Put everything in writing - it can't hurt. There are many rights under the law which are not activated until you document your request in writing or provide the district with written notice. For example, always put in writing a request for assessments, a request for documents, and a notice of your intent to remove your child from a placement. Take notes during IEP meetings (or have someone else do it for you) and during telephone conversations. I like to follow up particularly "interesting" telephone conversations with a letter that documents all the statements made by the other party that are false or outside the scope of what is allowed under the law (you may want to save this for a particularly noteworthy conversation as the person will be less likely to say anything that "interesting" ever again).

8) You don't want the "best" you want what is "appropriate." Whenever a Parent says "best" at an IEP meeting I wince as it is a perfect opportunity for a district representative to pipe in about providing that child with a basic floor of opportunity. If you keep focused on what is appropriate they won't ever be able to say that you are after the "Cadillac" (although personally I would prefer a more efficient car - but I digress).

7) Don't over rely on technicalities. The law is filled with procedural rights that are meant to protect Parents and children but if you get caught up in the technicalities you could lose focus of the big picture - what your child needs to make educational progress. Unfortunately, a hearing officer or an administrative law judge is probably not going to care that the district didn't provide you with "prior" written notice that your child was no longer going to receive speech services - especially if you can't find anyone who recommends that he still needs speech services.

6) You need to learn to share. Provide the district with copies of all reports that you have done and with information about outside services you are providing. Parents sometimes want to keep information, such as independent evaluations or the fact they are providing services a secret until a hearing. This only makes you look like you have more to hide down the line and provides the district with the perfect defense - "had we known we would have paid for it/implemented it/considered it" (or the more likely "we would have provided you with notice we weren't going to pay for it/ implement it/ consider it").

5) Keep and organize all your documents. While you can always request records from the school district it is much easier if you have kept your own set of records if you need a document immediately or if you need to provide your documents to an advocate or an attorney. Also if there is going to be a "smoking gun" (and there usually isn't) it will be that the district has a "different" version of a document at a later date and your original document will help clear up any confusion. Also don't write on the documents - they may need to be used later as evidence and clean documents are better than ones where Parents have scribbled out words or taken notes all over.

4) Kill them with kindness. This could be a hard pill to swallow especially to Parents who have had a hard time with a particular administrator in the past but just because you are having a disagreement over services does not mean that you should be rude or get angry with someone as it usually won't serve any purpose - other than bringing a meeting to a screeching halt or making Parents look vindictive if they file for due process later. I've found that you can get a lot more information out of people if you are polite rather than calling them a liar or throwing papers in their face. Also you will come across as a much more credible witness to a hearing office or administrative law judge if you don't have a history of battering district employees.

3) Be the squeaky wheel. You can't assume the district will do what's right, fair, appropriate or even legal. While you should be courteous that doesn't mean you should lay down and let them roll over you. If you want an independent evaluation- ask for it. If your student isn't making progress - request an IEP. A school is much more likely to address your concerns if you let them know what they are on a regular basis rather than waiting until your child's annual IEP to ask questions.

2) Learn the lingo. An IEP can be all about whether your student needs an SDC to address his SLD because RTI was unsuccessful based on his PLOP and if any other DIS services are needed for FAPE. If you have no idea what any of these acronyms mean you are going to quickly get lost at an IEP meeting. While you can certainly ask a district representative to explain them to you (although in my experience they hardly ever know what DIS actually stands for) you will have an easier time of it if you familiarize yourself with the acronyms and any other vocabulary related to your child's disability beforehand.

1) If you need help - ask for it. This can all be overwhelming and technical to a Parent who hasn't been through the process before and there are advocates and attorneys who can help you navigate through it. If you can't afford an attorney or advocate there are organizations that will work with parents at little to no cost and with a little research you should be able to find some in your area. Also consider joining a parent support group as there will be parents there who have been through the process and likely willing to give you some advice or even come with you to an IEP meeting.