ACSA’s ECCS:
iLearn, iGrow, iSucceed

DUE PROCESS BOOTCAMP
January 16, 2014, by:
!

Mona Neter
Director of Special Educati...
DPH: Why file?
On any matter relating to
the:

•
•
•
•

identification,
evaluation,
educational placement, or
provision of a...
The timeline is shorter than in parent-filed
cases because no resolution session is
required. OAH has 75 days to issue its
...
Response To Complaint:
Motion To Dismiss
• Issues alleged by the parent are not
within the jurisdiction of OAH.
• Parents ...
Preparing Witnesses
• Your background
• Your acquaintance with the student.
• What occurred at a specific time or
place (e....
Subpoenas
Of People or Things
Former Employees
NPA Employees

(5 CCR § 3082(c)(2))

Notice of Representation

• The other ...
Notice of Witnesses & Evidence

at least 5 business days prior to the hearing

(Ed. Code §§ 56505(e)(7), 56043(v))

Cost v...
Your Case Is Only As
Good As Your Witnesses

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

Cl...
rebut evidence introduced against
one of your witnesses
if respondent does not testify in his
or her own behalf he or she ...
Attorneys’ Fees Awarded
to Parents
• Court awarded $65,803 to parent, of
$120,784 in attorneys’ fees.
• Parent only prevai...
Good Bye!
Thanks
for
coming
!
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Cole dalton bootcamp2014 handout

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Cole dalton bootcamp2014 handout

  1. 1. ACSA’s ECCS: iLearn, iGrow, iSucceed DUE PROCESS BOOTCAMP January 16, 2014, by: ! Mona Neter Director of Special Education, Alhambra USD ! Cole Dalton, Esq. Dalton Law Group, PC 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 !
  2. 2. DPH: Why file? On any matter relating to the: • • • • identification, evaluation, educational placement, or provision of an appropriate education. (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. (Schaffer v. Weast (2005) 546 U.S. 49 [126 S.Ct. 528]) • The hearing may involve issues of both procedural and substantive due process. (Board of Education of the Hendrick Hudson Central School District v. Rowley (1982) 458 U.S. 176) • Substantive: whether the IEP was reasonably calculated to provide educational benefit. 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.
  3. 3. 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. Decision Timeline 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. 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 TIME Political Issues MONEY $$$ Notice of Insufficiency (20 USC § 1415(b)()7(B) & (c)(2); (Ed. Code § 56502) ! Motion to Continue ! Motion to Amend/File + consolidation RESPONSE TO COMPLAINT RELATIONSHIPS
  4. 4. Response To Complaint: Motion To Dismiss • 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. Parent can file a motion to determine the stay put placement of their child during the pendency of the hearing procedures. The Case is Proceeding What if I don’t want to go? Witness Interviews When Why How Where What...should they bring? Document Review Motion For “Stay Put” (See, Student v. Mt. Diablo USD (2011) OAH Case No. 2010061370)
  5. 5. 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
  6. 6. Subpoenas Of People or Things Former Employees NPA Employees (5 CCR § 3082(c)(2)) 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
  7. 7. Notice of Witnesses & Evidence at least 5 business days prior to the hearing (Ed. Code §§ 56505(e)(7), 56043(v)) Cost vs. Benefits - Revisited RELATIONSHIPS TIME Political Issues MONEY $$$ 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
  8. 8. Your Case Is Only As Good As Your Witnesses “My old drama coach used to say, ‘Don’t just do something, stand there.’” Clint Eastwood Witness Testimony Your Case Is Only As Bad As Your Witnesses Witness Testimony you’ve called your witnesses, you’ve introduced your exhibits; you’ve cross-examined opposing witnesses; what’s left? (Govt. Code § 11513(b)) Evidentiary Rights of Parties 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.
  9. 9. 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 (Govt. Code § 11513(b)) Evidentiary Rights of Parties impeachment evidence; or 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)) 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)) Hearsay v Administrative Hearsay 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)
  10. 10. 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 An appeal of a due process hearing decision shall be made within 90 calendar days of receipt of the hearing decision. (Ed. Code §§ 56505(k), 56043(w)) Walk Aways
  11. 11. Good Bye! Thanks for coming !

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