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PROVING FAPE IN A DUE PROCESS HEARING

PROVING FAPE IN A DUE PROCESS HEARING. CALIFORNIA ASSOCIATION OF SCHOOL PSYCHOLOGISTS February 18, 2006 By: Jonathan P. Read. IDEA 2004: Overview. The reauthorized IDEA (IDEIA or IDEA 2004) was signed into law by President George W. Bush on December 3, 2004.

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PROVING FAPE IN A DUE PROCESS HEARING

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  1. PROVING FAPE IN A DUE PROCESS HEARING CALIFORNIA ASSOCIATION OF SCHOOL PSYCHOLOGISTS February 18, 2006 By: Jonathan P. Read

  2. IDEA 2004: Overview • The reauthorized IDEA (IDEIA or IDEA 2004) was signed into law by President George W. Bush on December 3, 2004. • Most provisions of the IDEA 2004 are effective as of July 1, 2005. • Highly Qualified Teacher and some funding provisions have been effective since January 1, 2005. • On October 7, 2005, the Governor signed Assembly Bill 1662 bringing California law into conformity with federal law. • Final federal regulations were expected by December 2005.

  3. What is a Due Process Hearing? • Court-like proceeding • Office of Administrative Hearings

  4. What is a Due Process Hearing? • Witnesses, evidence • Direct examination, cross-examination • Rules of evidence don’t apply

  5. What is a Due Process Hearing? • Initiated by parent or public education agencies • DMH, CCS, NPSs, and NPAs may be called as parties

  6. CDE Compliance Complaints • Alleged violations of federal or state special education law • If a complaint is filed with both OAH and CDE, CDE investigation must be stayed

  7. Reasons for a Hearing • Proposal to initiate or change assessment / placement of a student • Refusal to initiate or change assessment / placement of a student • Disagreements between parent and district, SELPA, or County regarding availability of program and financial responsibility

  8. Reasons for a Hearing • School districts must file when • Refusing to pay for IEE or • Parent does not consent to portion of the IEP necessary for FAPE • Parent does not consent to the IEP

  9. Reasons for a Hearing • OAH does not have jurisdiction over other issues, including failing to comply with a settlement agreement or a due process hearing decision • OAH will hear issues of residency

  10. Initiating the Hearing Process • Until October 2006, request must be filed within 3 years that parents had knowledge or should have had knowledge of violation, if they agree to mediation • After October 2006, request must be filed within 2 years

  11. After the Complaint • Notice of Insufficiency of Due Process Complaint • Within 15 calendar days of receipt of Complaint • District Resolution Session with Parents • Within 15 calendar days of receipt of Complaint

  12. After the Complaint • Response to Complaint • Within 10 calendar days of receipt of Complaint • Other Party Response • Within 10 calendar days of receipt of Complaint

  13. Before the Due Process Hearing • Order Subpoenas/Subpoenas Duces Tecum • 15 calendar days prior to due process hearing • Statutory/Rule 68 Offer • 11 calendar days prior to due process hearing • Statement of Issues and Notice of Representation • 10 calendar days prior to due process hearing • Notice of Documentary Evidence • 5 business days before due process hearing • Witness List • 5 business days before due process hearing

  14. Before the Due Process Hearing • Parents may review school records

  15. During the Hearing • Fair, impartial, and knowledgeable hearing officer • Student may be present • May be accompanied by counsel or individuals with special knowledge or expertise • Right to compel attendance of witnesses

  16. During the Hearing • Administrative Law Judge (“ALJ”) may call witnesses • ALJ may order assessment • ALJ may order discussion between experts • ALJ may ask questions

  17. After the Hearing • Decision within 45 days • Appeal of decision within 90 days

  18. Remedies • Compensatory education • When FAPE is denied • To replace lost services or educational opportunity • No obligation for day-to-day or hour –to- hour replacement

  19. Remedies Reimbursement • If school district failed to offer FAPE • Private placement appropriate

  20. Remedies Reimbursement • May be reduced or denied if parents act unreasonably or fail to provide notice

  21. Remedies • Monetary damages are not available • Parents may recover attorneys’ fees and costs if they prevail

  22. The Role of Assessor in the Due Process Hearing

  23. The Role of the Psychologist • Due process hearings often become a “battle of experts” • You are also likely a “percipient witness” • You will be attacked for your bias and questioned about your qualifications • You are not required to have the same credentials as the parent’s expert in order to provide effective testimony

  24. The Role of the Psychologist • Before the hearing: • Make sure testing, protocols, and reports are complete and accurate • Identify strengths and areas of venerability • Do not change documents

  25. The Role of the Psychologist Consultant to attorney: You may also assist by reviewing parent’s evidence and developing cross-examinations

  26. The Role of the Psychologist Preparation is the key • Review evidence, reports, protocols, IEPs, professional literature • Review IEPs • Review test manuals

  27. Successful Testimony Begins With • Credibility: • Legally compliant assessments • Credentials/qualifications • Experience/Knowledge • Understanding eligibility

  28. Be Prepared to Discuss Your Credentials • Knowledge of skills required for state credentials • Knowledge of federal requirements for credentials

  29. Discuss Your Qualifications • Post high school education • Research and publishing • Teaching at a college/university in a relevant field • Honors and recognition • Inservices and seminars

  30. Discuss Your Knowledge • Special Education (specifics -age group, particular disabilities) • Knowledge of this disability • Knowledge of this student

  31. Discuss Your Experience • History with current employer • Job duties • Past employment history • Research and publishing • Volunteer experience • Provide a current Curriculum Vitae

  32. Discuss Your Understanding of Eligibility • An appropriate assessment does not automatically qualify a disabled student for a FAPE; that is a IEP team decision • Many private assessments focus on a diagnosis in a clinical setting; this does not equate to eligibility in an educational setting

  33. Witness Preparation Before and after the hearing: • Review records • Be familiar with subject of your testimony • Don’t talk about the case

  34. The Two Golden Rules • Tell the truth • Take a sip of water

  35. Testifying at the Hearing • Tell the truth • Speak confidently • Don’t become angry/defensive • Be brief • Think before you speak • If you didn’t hear/understand, ask • Don’t speak over others • Do not guess or speculate • Dress professionally

  36. Request for an Independent Educational Evaluation at Public Expense

  37. Independent Educational Evaluations Definition: an evaluation conducted by a qualified examiner who is not employed by the district. • Parents have a right to an IEE • IEE may be at public expense • When can a parent request an IEE? (1 year after district assessment?)

  38. The Test A parent has a right to an IEE at public expense only if: • The parent disagrees with an assessment obtained by the educational agency, AND • The educational agency is unable to show at a due process hearing that its assessment was appropriate.

  39. Disagreement with the Assessment Compare: Did the parents disagree with the assessment or the IEP?

  40. Education Code section 56320 • Qualified individuals • Interns?

  41. Education Code section 56320 • Tests selected and administered so as not to be racially, culturally, or sexually discriminating • Materials and procedures in native language unless clearly not feasible

  42. Education Code section 56320 • Tests and other assessment materials are used for purposes for which the assessment or measurements are valid and reliable

  43. Education Code section 56320 • Are administered in accordance with any instructions provided by the test producer • Exception: Intellectual or emotional functioning shall be administered by a school psychologist

  44. Education Code section 56320 • Tailored to assess specific area of educational need and not merely a single general intelligence quotient

  45. Education Code section 56320 • Selected and administered to best ensure that when administered to a student with impaired sensory manual or speaking skills, the tests accurately reflect aptitude, achievement, or other factors that the test purports to measure • No single measure is used to determine eligibility or educational program

  46. Education Code section 56320 ALL AREAS OF SUSPECTED DISABILITY

  47. Education Code section 56320 For students with low incidence of disability, by persons knowledgeable of that disability

  48. Assessments ADHD, specifically: • Not an independent eligibility category • However, student can still qualify as: • ED (emotionally disturbed) • OHI (other health impaired) • SLD (specific learning disability) • Address all

  49. Assessments • Are assistive technology, vision therapy, music therapy, central auditory processing disorder areas of suspected disability?

  50. The Written Assessment Report A written report must be prepared for each assessment performed

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