PROCEDURAL SAFEGUARDS & CONFLICT RESOLUTION

Transcription

1 PROCEDURAL SAFEGUARDS & CONFLICT RESOLUTION Statewide Parent Advocacy Network

2 Procedural Safeguards You must consent in writing to the initial evaluation and all future evaluations. If you do not consent, the district may request an impartial hearing.

3 Procedural Safeguards You have a right to an independent evaluation at the district s expense if you disagree with the evaluation. You do not need to explain your disagreement. The district cannot deny your request for an independent evaluation. It must grant it or request a hearing to prove its evaluation is appropriate. Your request must be in writing!

4 Procedural Safeguards The full team must meet with you unless you give your written consent to excuse a mandatory member of the team, but only if they provide information to you and the rest of the team in advance of the meeting in writing

5 Parental Consent to the IEP You must consent to the initial IEP before it can be implemented If you do not consent to the IEP, the district no longer has the obligation to provide FAPE

6 Parental Consent to the IEP Once your child is receiving special education services, your consent is not required for the district to change the IEP if they provide you with adequate notice and opportunity to participate in decision-making.

7 Parental Consent to the IEP If you disagree with the district s decision, you must request mediation or due process/ impartial hearing to stop the district from moving forward with its revised IEP.

8 Parental Revocation of Consent You have the right to revoke your consent to special education at any time, in writing, without giving a reason for your revocation The district may ask you to meet with them to discuss your request but you need not comply

9 Parental Revocation of Consent If you revoke consent for special education services, your child may still be eligible for services, including a free appropriate public education in the LRE, under Section 504 Request a 504 evaluation & plan

10 Other Procedural Safeguards Safeguards ensure: That the rights of children with disabilities and their parents are protected That students with disabilities and their parents are provided with the information they need to make decisions about the provision of FAPE, and That procedures and mechanisms are in place to resolve disagreements between parties.

11 Right to Notice & Response You have the right to notice of your rights in your language. The district must provide written responses to your written requests. The district has 20 days to respond to you; you have 15 days to respond to the district. You have the right to notice of any proposed actions, and to a detailed, written explanation of why your district or school is planning on taking an action or refusing your request, in your language.

12 Right to Notice & Response You have the right to an IEP meeting upon request. You have the right to advance written notice of any proposed meeting. Meetings must be conducted in your language. You have the right to access the information you need to be an equal participant in the meeting prior to the meeting. You have the right to bring someone with you at your discretion a friend, relative, advocate or lawyer.

13 Right to Access Records You have the right to review and get copies of your child s records before any meetings; to keep your child s records confidential; to request removal of inaccurate or inappropriate information from your child s records; and to attach your explanatory or disagreeing statement to your child s records.

14 Right to Dispute Resolution If you disagree with the school/district, you may request: Mediation Due process/impartial hearing Complaint investigation If you request an impartial hearing, you must first give the district the chance to resolve your disagreement by participating in a resolution session held by the district

15 Right to Dispute Resolution Mediation & a hearing must be completed within 45 calendar days from receipt of your request Complaint investigation must be completed within 60 calendar days from receipt of your request

16 Helpful Hints Get it in writing! Ask for what you want, in writing. Keep logs & copies of everything. Bring someone with you. Don t be afraid to ask, or speak up. Stay on top of your child s progress.

17 Building Blocks for Successful Meetings Proper preparation prevents piss poor performance! Prioritize the most important issues You bring your agenda Use the I language Active listening Refocus the discussion Keep requesting revisits of essential issues when necessary

18 Map out your strategies in advance of the meeting: HOW to address each issue TO WHOM to address each issue WHAT will the district/school's position be? HOW can you respond to that position?

19 Preparing for your meeting Share information re: laws, interpretation of laws, new research developments that support your position, etc. in advance of the meeting Identify divisive issues as well as areas of agreement Be prepared to listen actively & to fully consider other viewpoints ROLE PLAY to give yourself strength and courage for the meeting, and to be prepared to participate effectively in the meeting

20 Strategies for Successful Meetings If time frame for meeting is too short, prioritize issues that you'll have time to discuss during that time frame and inform participants that other issues will have to be discussed later Narrow areas of disagreement as much as possible; reserve enough time for big issues of disagreement

21 Conflict Resolution Options Compromise Go up the chain of command Informal Mediation Formal mediation Request a hearing File a request for complaint investigation

22 CONFLICT RESOLUTION: In mediation, an impartial mediator provides a problemsolving structure and process. The mediator does NOT make decisions for the parties. Mediation has a 30-day timeline. MEDIATION

23 Who may attend a mediation? Representatives of the school/district with authority to reach an agreement Parents, family members, family supporters (who help them feel more relaxed, confident, or better able to focus clearly on the decisions to be made.) Child at the family s discretion Other people who know the child, or the resources and services in the child s areas of need

24 Initial Joint Session The first opportunity for each party to share and gather information. Parents can describe their child & family's needs, discuss their concerns, and share their ideas. School personnel also have this opportunity.

25 Private Sessions During the private sessions, the mediator has a chance to talk to each party alone about sensitive facts. S/he may help each party to more clearly define what they are interested in getting out of mediation. The mediator may also help develop options for reaching agreement.

26 Final Joint Session At this point, the parties will have a chance to finalize an agreement and work out any additional details. The parties may want to find out more about new options that have been offered.

27 If no agreement s reached If no agreement has been reached, the parties may discuss the scheduling of a hearing or state a partial agreement and clarify the remaining issues in dispute.

28 Reaching Agreement If an agreement is reached, it is put into writing, signed, and is enforceable by the NJ Department of Education. Contact Roberta Wohle if there are problems with the mediator (who must remain impartial and should be knowledgeable) or with enforcement of the mediation agreement.

29 Difference Between Mediation and Hearing Cooperative problemsolving encouraged Non-adversarial; no winners or losers Discussion allows participants to focus on solving the problem, developing the IEP, etc. together Tension & hostility may be increased Adversarial; winners and losers! Evidence and testimony are presented; third party decides

30 Helpful Hints for Mediation Do describe your ideas about what can be done to improve the situation. Do keep an open mind, take time to assess carefully, and consider why a particular option might or might not be appropriate and satisfactory. Do focus on the present and the future, and recognize that you have long-term interests in your child s development. Don't put the other party on the defensive by reviewing all the things that you perceive have gone wrong. Don't get too excited and hopeful about a new idea without taking time to carefully consider it. A new option may seem very attractive just because it's new. Don't get trapped by previous experiences, or past dissatisfactions which get in the way of current options.

31 What if mediation doesn t work? Other options: Due process/ impartial hearing Request for complaint investigation Civil Rights complaint Litigation/appeal

32 Other Options Complaint investigation: useful for systemic issues (60 days from receipt of request for complaint investigation to final determination) Civil Rights complaint: filed with US DOE Office for Civil Rights; useful for Section 504 (no timeline for OCR decisions)

33 Conflict Resolution: Impartial Hearing An impartial hearing is a formal legal proceeding, but it s not court. A due process hearing has a 45-day timeline.

34 How to request a hearing Request a special education or Section 504 hearing in writing from Roberta Wohle, NJS Department of Education, Office of Special Education Programs, on their special form in the PRISE booklet.

35 The Resolution Session The district must then decide to: File a response within 10 days of receipt of the parent s complaint, and schedule a resolution session; File a response within 10 days of receipt of the parent s complaint, and agree to let the due process hearing go forward without a resolution session; or Notify the parent and the state hearing officer within 15 days of receipt of the parent s complaint that they are challenging the sufficiency of the parent s complaint notice.

36 The Resolution Session If the district has not sent a prior written notice to the parent regarding the subject of the complaint, the district must include in its response:

37 The Resolution Session An explanation of why the district proposed or refused to take the action raised in the complaint; A description of other options the IEP team considered and why those options were rejected;

38 The Resolution Session A description of each evaluation procedures, assessment, record or report the district used as the basis for the proposed or refused action; and A description of the factors that are relevant to the district s proposal or refusal.

39 Conducting the Session If the district decides to conduct a resolution session, the parent and the district meet to resolve the problem. The school district must convene the meeting with the parents and relevant members of the IEP team within 15 days of when the school district receives the parent's due process complaint.

40 Timeline to Resolve The school district has 30 days (15 days for discipline cases) from the time the complaint is filed to resolve the complaint to the satisfaction of the parents, after which a due process hearing can occur.

41 Reaching Resolution If the district and the parent come to a resolution, their agreement is written and signed by both parties. Either side has the right to change their mind within 3 days after the agreement is signed.

42 Not Reaching Resolution If the district and the parent do not come to a resolution, the parent can proceed to the due process hearing. The impartial hearing officer must issue a decision within 45 days.

43 Waiver of Resolution Session The parent and the district may agree in writing that a resolution session would not be productive and to let the hearing proceed. At this point, the hearing would proceed and a decision should be reached within 45 days of the state s receipt of the parent s request for a hearing.

44 Resources for representation General (discipline, residency) and special education: Education Law Center Special education: Community Health Law Project NJ Protection & Advocacy Special ed law clinics Private attorneys

45 Preparing for Due Process Ask to view your child s records each year and get a copy of the entire record initially and then any new records at least annually - ALL RECORDS!

46 Preparing for the hearing Organize what you know and don t know into categories: Facts (procedural and substantive) Law (Citations to federal and state law/regulation) Evidence (documents, your knowledge, witnesses)

47 Investigate the facts Review all known relevant facts - procedural & substantive Identify all potential witnesses Identify all documents and real evidence Identify weak and strong points

48 Investigate the law Determine the substantive rules that govern the case Outline the facts required to establish each legal theory Anticipate your and the district s potential objections to evidence, and your response

49 Analyzing your case The Law What does the law require or prohibit? How have the provisions been interpreted by regulations, administrative policy memos, or courts? The Facts Review all the evidence Analyze the value of the evidence: Substantiated? Agreed-upon facts? If disputes, who has greater credibility? Any reason for untruthfulness? Which experts have greatest expertise or knowledge?

50 Applying law to the facts Step 1. What are the aspects of the law alleged to have been violated? What do those aspects of the law actually say and how have they been interpreted? Is your complaint a violation of the law?

51 Applying law to the facts Step 2. What are the facts? Who did or didn t do what when? Look at process (what happened when) as well as substantive issues. Can the district prove that it complied with the law in all respects?

52 Applying law to the facts Step 3. Apply the legal framework (what the law required or prohibits) to the facts with regard to both processes (were appropriate processes followed) and substantive issues. Are there any acceptable reasons for noncompliance?

53 Applying law to the facts Step 4. Identify the corrective actions you are asking for. What steps should be taken to solve the problem? Is there any way to make up for the violation of the law?

54 Possible Corrective Actions Conduct an evaluation Hold a meeting Develop or revise a plan Add, extend, change a service Reimbursement Require that services start immediately

55 Preparing your case: Choose witnesses who are truthful, articulate, reliable Plan a coherent presentation and order of witnesses, evidence Prepare your witnesses in advance witnesses

56 Preparing your case: expert witnesses The OAL judge will deem the CST to be experts so you need to have expert evidence to combat the CST testimony Possible expert witnesses include: Private evaluators Private service providers Your physician Inclusion specialist PBS specialist

57 Preparing your case: subpoenaing witnesses Before subpoenaing a witness, make sure they will testify positively for you If someone is on your side, they may need you to subpoena them so that they will not face retaliation If you want to subpoena witnesses, complete a subpoena form

58 Preparing your witnesses Prepare an outline of your case and witness examination Disclose to each witness the outline of their examination Prepare your witness for the hearing experience

59 Preparing your questions One? at a time No negatives in? Make? brief State? in simple words Make? as clear as possible Anticipate objections and your responses

60 Preparing your documents Any documents you intend to introduce at the hearing must be provided to the other party at least 5 days before the hearing or they may be excluded The district will also provide its documents in advance

61 Expert reports/evaluations Ensure that they are: Legible (typed if possible) Comprehensive & specific Understandable (not in educationese) Signed and dated original copy Testing protocols Information on expertise of the expert conducting the evaluation and/or writing the report

62 Preparing yourself Your effectiveness depends on your: Sincerity of manner Attitude of fairness Perspective and Context Preparation: Proper preparation prevents piss-poor performance

63 The Hearing Opening statements (NOT evidence!) - summary of what you intend to show Making the case -the burden of proof, by a preponderance of the evidence, is on whoever requests a hearing The parties to a hearing, or their advocates or attorneys, present evidence to the hearing officer/ Administrative Law Judge at the Office of Administrative Law (OAL).

64 Rules of Evidence There are rules of evidence in a due process hearing, but they are not as formal as court rules. Some of these rules include: Authentication of documents Not assuming facts that haven t already been introduced

65 Making Your Case Direct Examination: Present evidence legally sufficient to raise each claim or defense, and convince the fact-finder of the truthfulness and accuracy of your evidence

66 Closing Statements The procedural and substantive facts you were able to prove The district s failure to obey the law Your dispositional request (what relief do you want?)

67 Hearing Decision The hearing decision must be issued within 45 days of receipt of your written request, UNLESS the hearing officer orders an adjournment of the hearing, which tolls the timeline The hearing decision must be based on only on the record of documents and testimony that has been presented to the hearing officer.

68 Attorneys Fees Attorney s fees are available in special education if you prevail at a hearing, and gave the district fair notice of your concerns prior to the hearing

69 Appealing decisions Decisions based on federal law may be filed with the U.S. District Court and then with the 3rd Circuit Court of Appeals Decisions based on state law are filed with state court Attorneys are needed to conduct appeals The impartial hearing record can be used later if there is a lawsuit filed in court.

70 What happens when it s over? Win or lose, you still have to work together for the good of your child, so Don t be bitter Don t be nasty Be generous Be welcoming Be ready to start over!