CLE for Lunch: Special Education An Introduction to Impartial Due Process Hearings in NY

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1 EVALUATION FORM In order for us to improve our continuing legal education programs, we need your input. Please complete this evaluation form and place it in the box provided at the registration desk at the end of the session. You may also mail the form to CLE Director, NYCLA, 14 Vesey Street, New York, NY CLE for Lunch: Special Education An Introduction to Impartial Due Process Hearings in NY June 24, 2015; 12:20 PM 1:35 PM I. Please rate each speaker in this session on a scale of 1-4 (1 = Poor; 2 = Fair; 3 = Good; 4 = Excellent) Jennifer Frankola Presentation Content Written Materials II. Program Rating: 1. What is your overall rating for this course? Excellent Good Fair Poor Suggestions/Comments: A. Length of course: Too Long Too Short Just Right B. Scheduling of course should be: Earlier Later Just Right 2. How did you find the program facilities? Excellent Good Fair Poor Comments: 3. How do you rate the technology used during the presentation? Excellent Good Fair Poor Comments: Please turn over to page 2 1

2 4. Why did you choose to attend this course? (Check all that apply) Need the MCLE Credits Faculty Topics Covered Other (please specify) 5. How did you learn about this course? (Check all that apply) NYCLA Flyer NYCLA Postcard CLE Catalog NYCLA Newsletter NYCLA Website New York Law Journal Website NYCLA CLE Other (please specify) Google Search 6. What are the most important factors in deciding which CLE courses to attend (Please rate the factors 1-5, 1 being the most important). Cost Subject matter Location Date and Time Provider Organization of which you are a member Other 6. Are you a member of NYCLA? Yes No III If NYCLA were creating a CLE program specifically tailored to your practice needs, what topics or issues would you want to see presented? 2

3 NYCLA CLE I NSTITUTE CLE FOR LUNCH: SPECIAL EDUCATION AN INTRODUCTION TO IMPARTIAL DUE PROCESS HEARINGS IN NY Prepared in connection with a Continuing Legal Education course presented at New York County Lawyers Association, 14 Vesey Street, New York, NY scheduled for June 24, 2015 Program Co-sponsor: NYCLA s Education Law Committee Program Chairs: Nelson Mar, Legal Services NYC, Chair, NYCLA s Education Law Committee; Jessica Limbacher, Volunteer Lawyers for Justice Faculty: Jennifer Frankola, Lewis Johs Avallone Aviles, LLP This course has been approved in accordance with the requirements of the New York State Continuing Legal Education Board for a maximum of 1.5 Transitional and Non-Transitional credit hours; 0.5 Professional Practice.; 1 Ethics. This program has been approved by the Board of Continuing Legal education of the Supreme Court of New Jersey for 1.5 hours of total CLE credits. Of these, 1 qualifies as an hour of credit for ethics/professionalism, and 0 qualify as hours of credit toward certification in civil trial law, criminal law, workers compensation law and/or matrimonial law. ACCREDITED PROVIDER STATUS: NYCLA s CLE Institute is currently certified as an Accredited Provider of continuing legal education in the States of New York and New Jersey.

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5 Information Regarding CLE Credits and Certification CLE for Lunch: Special Education An Introduction to Impartial Due Process Hearings in NY June 24, 2015; 12:20 PM to 1:35 PM The New York State CLE Board Regulations require all accredited CLE providers to provide documentation that CLE course attendees are, in fact, present during the course. Please review the following NYCLA rules for MCLE credit allocation and certificate distribution. i. You must sign-in and note the time of arrival to receive your course materials and receive MCLE credit. The time will be verified by the Program Assistant. ii. iii. iv. You will receive your MCLE certificate as you exit the room at the end of the course. The certificates will bear your name and will be arranged in alphabetical order on the tables directly outside the auditorium. If you arrive after the course has begun, you must sign-in and note the time of your arrival. The time will be verified by the Program Assistant. If it has been determined that you will still receive educational value by attending a portion of the program, you will receive a pro-rated CLE certificate. Please note: We can only certify MCLE credit for the actual time you are in attendance. If you leave before the end of the course, you must sign-out and enter the time you are leaving. The time will be verified by the Program Assistant. Again, if it has been determined that you received educational value from attending a portion of the program, your CLE credits will be pro-rated and the certificate will be mailed to you within one week. v. If you leave early and do not sign out, we will assume that you left at the midpoint of the course. If it has been determined that you received educational value from the portion of the program you attended, we will pro-rate the credits accordingly, unless you can provide verification of course completion. Your certificate will be mailed to you within one week. Thank you for choosing NYCLA as your CLE provider!

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7 New York County Lawyers Association Continuing Legal Education Institute 14 Vesey Street, New York, N.Y (212) CLE for Lunch: Special Education An Introduction to Impartial Due Process Hearings in NY Wednesday, June 24, 2015, 12:00 PM-1:35 PM Program Co-sponsor: NYCLA s Education Law Committee Program Chairs: Nelson Mar, Legal Services NYC, Chair, NYCLA s Education Law Committee; Jessica Limbacher, Volunteer Lawyers for Justice Faculty: Jennifer Frankola, Lewis Johs Avallone Aviles, LLP AGENDA 11:30 AM 12:00 PM Registration 12:00 PM 12:20 PM Lunch 12:20 PM 1:35 PM Presentation, Discussion and Questions and Answers

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9 CLE for Lunch: Special Education An Introduction to Impartial Due Process Hearings in NY Sponsored by: NYCLA s Education Law Committee, Nelson Mar, Legal Services NYC, Chair, NYCLA s Education Law Committee; Jessica Limbacher, Volunteer Lawyers for Justice Presented by: Jennifer Frankola, Esq., Litigation Associate at Lewis Johs Avallone Aviles, LLP A. Overview of Special Education Law OUTLINE Special Education Law is a civil rights practice, a mix of federal, state and administrative practice and includes a long list of specialized acronyms often referred to as an alphabet soup. Federal and New York State laws regulate the education of children with disabilities. The Individuals with Disabilities Education Improvement Act ( IDEA or IDEIA ), Section 504 of the Rehabilitation Act of 1973 ( Section 504 ), and Title II of the Americans with Disabilities Act ( ADA ). In New York, the main state law is Article 89 of the New York Education Law. Under the IDEA, a school district is obligated to provide a free, appropriate public education in the least restrictive environment to all children with disabilities. 1. Who is a child with a disability? a. IDEA defines a child with a disability as a child: i. with mental retardation (intellectual disability), hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance,orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and ii. who, by reason thereof, needs special education and related services. (20 U.S.C Sect. (3)(A)). 2. Is the school district providing the child with a free appropriate public education (FAPE)? a. IDEA defines FAPE as: i. Special education and related services that: 1. have been provided at public expense, under the public supervision and direction, and without charge, 2. meet the standards of the State educational agency, 3. include an appropriate preschool, elementary school, or secondary school education in the State involved, and

10 4. are provided in conformity with the individualized education program (IEP) required under section 614(d) [of the IDEA, codified at 20 U.S.C. Sect. 1414(d)]. FAPE is further defined by the Supreme Court case Board of Education v. Rowley, 458 U.S. 176, (1982). Rowely held that an appropriate education under the IDEA requires that the IEP meets two criteria: Procedural: The IEP must be developed according to the procedures under the IDEA. If procedures are not followed, then it s not appropriate. Substantive: The IEP must be reasonably calculated to enable a child to receive educational benefits. 3. Is the school district providing FAPE in the Least Restrictive Environment (LRE)? Child Find According to the IDEA, a FAPE must be provided in the LRE, to the maximum extent appropriate. Children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and special classes, separate school, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. 20 U.S.C. Sect. 1412(a)(5)(A). Remember: Always FAPE first. Child Find is another provision of the IDEA. This provision placed an affirmative obligation on school districts to identify, locate and evaluate children who may have disabilities within their jurisdiction. This applies to children in public or private or religious schools/institutions. 20. U.S.C. Sect. 1412(a)(3); 8 N.Y.C.R.R. Part 200.2(a)(1). Pendency/Stay Put Pendency is a procedural provision of the IDEA which provides that: [During the pendency of any proceedings unless the State or local educational agency and the parents otherwise agree, the child shall remain in the them-current educational placement of such child, or, if applying for initial admission to a public school, shall, with the consent of the parents, be placed in the public school program until all such proceedings have been completed. 20 U.S.C. 1415(j).

11 B. What happens when the school district doesn t offer FAPE? 1. Encourage COMMUNICATION between the parent and the school district. 2. Request (in writing) for an IEP MEETING or a REFERRAL to the Committee on Special Education (CSE) to discuss student s failures/needs/progress and/or need for evaluations. 3. EXAMINE your child s academic, social, emotional and physical needs based on his/her development in and outside of school. 4. Develop a PLAN based on expert advice to address your needs with services in school or outside of school. 5. Request a MEDIATION or a HEARING or file a COMPLAINT. C. ETHICS: Representation of Clients in Special Education Proceedings 1. Be VERY clear in your retainer about whom you represent, fees and the scope of representation. 2. Attach the Clients Rights and Responsibilities form. 3. Check for and report on potential CONFLICTS. 4. Model Rule 1.14, 1.6, the IDEA and its comments. One of the bedrocks of the IDEA is parent involvement in the process of determining appropriate educational services for their child. (20 U.S.C. Sect (5)(B)) (2004). 5. The child is the subject of the hearing, but the parents are usually the party who retains the attorney and they have a distinct right to make decisions on behalf of their child. SCOTUS recognizes the right of parents to be involved in the decisions regarding their disabled children. Rowley at 208; Winkelman v. Parma City Sch. Dist., 550 U.S. 516 (2007). 6. Divorced parents? Check the custody agreement and get copies of the court papers. Fuentes (NY): Parent who has actual custody is the only one who can make the educational decisions. The non-custodial parent can participate in ministerial duties (getting records, etc.) Get full voluntary consent in writing. D. PRACTICE TIP: Counseling Parents 1. Initial Intake a. Get all contact information and emergency contact information. b. Explain their rights and responsibilities. c. Decide which is the best way of communication (letter, phone call, ). d. Sign retainer. 2. Get them organized! a. Binders, folders, files, labels. b. Parents keep originals; lawyer gets copies. 3. Write a letter to school district requesting to release full and complete set of child s records. Send Health Insurance Portability and Accountability Act (HIPAA) forms if necessary. 4. Gather evaluations (both public and private).

12 5. If further testing is needed, write a letter to the school district to request IEEs. 6. Explain PRONG 3: The balancing of the EQUITIES. E. The Hearing Process 1. Statute of Limitations: a. 2 Year Statute of Limitations from after when the parents knew of should have known about the action that forms the basis of the complaint. 8 N.Y.C.R.R. Sect (j)(3). b. This does not apply if the school district prevented the parent form requesting a hearing. 2. What to include in the hearing request? a. Child s name b. Address c. NYCID # (if known) d. School name and address e. Nature of the PROBLEM/ISSUES of the case (including relevant facts) f. Proposed RESOLUTION/REMEDIES (to the extent known and available) You will not be able to raise issues that are not contained within the due process request for impartial hearing. Amending the request: This is permissible with consent from either the IHO or on consent from both parties. It re-starts the timeline including the statute of limitations. 3. School District s Response a. A school district has 15 days after receiving the due process complaint to challenge it as insufficient if it fails to include the above information. If challenged, the IHO has 5 days to determine whether it is sufficient. A parent may be permitted to amend. 20 U.S.C. Sect b. A school district has 10 days to provide a written response or answer. 4. Resolution a. Parties are required to attend a resolution session prior to the impartial hearing unless both sides agree (in writing) to waive it. b. The school district must send written notice to the parent and schedule the resolution session within 15 days after they receive the due process complaint. c. Must include a school district employee with decision making authority. d. Must provide both sides an opportunity to present, discuss and resolve their issues. e. Resolution agreement full? Partial? That s ok! You have three days to review, accept or reject. f. May not include an attorney, unless the parent is accompanied by an attorney. g. If not fully resolved at this session or within 30 days of receipt of the due process complaint, the parents are entitled to move forward with their impartial hearing.

13 5. Timeline a. A hearing or prehearing conference must commence within 14 days after a) the IHO receives written permission by both parties to waive the resolution session, b) a resolution session was held but no agreement could be reached, or c) 30 days have passed after the receipt of the due process complaint whichever comes earliest. 8 N.Y.C.R.R. Sect (j)(3)(iii). b. If your client is ages 5-21, a decision must be rendered within 45 days. If your client is pre-school age or younger, a decision must be rendered within 30 days. 8 N.Y.C.R.R (j)(5); (h)(9). c. The IHO must render a decision no more than 14 days after the closing of the hearing record. 8 N.Y.C.R.R (j)(5). Extensions may be applied. 6. Preparing for the Impartial Hearing/Administrative Trial a. File a notice of appearance with the IHO b. Prepare and deliver any subpoenas to the IHO Subpoena records and school district employees The IHO can sign subpoenas, but you must serve them. Subpoena hearing? c. Pre-hearing conferences Narrow the issues and discuss subpoenas, documents needed, dates d. Evidence/Disclosures You must disclose to the District no later than 5 days before the hearing date. 1. Fax or mail a copy to your adversary. Prepare an exhibit list/index and label each exhibit with page numbers (Letter, page # for Parent exhibits and Number, page # for District exhibits). Example, Ex. A-1; Ex Prepare at least 3 copies: Attorney copy, IHO copy and Witness copy. e. Witnesses You have the right to compel witness testimony. Prepare your witness for direct and cross examination. Choose your witnesses wisely. Testimony by phone is permitted. f. Burden of Proof The school district has the burden of proof (presents their case first) In unilateral placement/tuition reimbursement/funding cases (Burlington/Carter/Connors), the parent has the burden to prove the appropriateness of the private school chosen. g. The Trial On the Record: The entire proceeding is recorded this is important. You have no jury, only your record and the IHO needs to rely on the record to make his/her decision. This record also travels up to any presiding review officer or judge on any appeal. Speak clearly and make sure to get copies of the transcripts to review for any errors 1. In NYC, the hearings are tape recorded. In the suburbs, they are usually recorded by a court reporter.

14 Present your documentary evidence. Argue/clear up any preliminary matters. Opening Statements: both parties are permitted to present opening statements. Witnesses: direct and cross examination. Closing Statements: you may be permitted to present a closing statement on the record OR you may request (or the IHO may ask you) to submit closing briefs or a memorandum of law. 7. Appeals a. An appeal of an IHO decision may be filed with the New York State Education Department (NYSED) under Part 279 of the regulations. b. Guidance and forms are available at c. Further appeals of the NYSED decision could be brought in either state or federal court.

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