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all things �Due Process

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Laura Tubbs Booth

Ratwik, Roszak & Maloney, P.A.

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Agenda

  • Due Process Hearings 101
    • Due Process
    • Timelines
    • When to consider a hearing
    • Resolution/Settlement
    • Preparation
      • Records and records retention
      • Witnesses

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The Individuals with Disabilities Education Act

  • Due Process Imbedded in IDEA

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Definition: What is “due process”

  • Constitutional concept
  • Government can’t take away a right without process

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Due Process

Notice

An opportunity to be heard

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Where is “due process” imbedded in School Law?

  • Suspension: Notice & Opportunity to be Heard
    • Administrative Conference
    • Written Notice
    • Readmit Conference
    • Limited Challenge

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“Due Process” is greater when potential loss of right is greater

  • Expulsion: > Notice & Opportunity to be Heard
    • Written Notice
    • Opportunity for Hearing & representation
    • Appeal

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Where is due process evident in development of IEP?

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Who drives the bus?

  • Parents input is crucial & required
  • Educators expertise is the driving factor
  • Agreement for the sake of agreement can lead to problems

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Complaint vs. Hearing Request

Complaint to MDE

  • Limited to one year
  • Investigated by MDE
  • District provides written response
  • Interviews possible
  • Outcome – Training, comp ed, policy or practice correction

Hearing Request

  • Two-year Statute of Limitations
    • MLK v. MTKA
  • Hearing Officer apptd by OAH
  • Evidentiary hearing
  • Outcome – Comp ed, placement, impact on stay put

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Due Process Hearing - What

  • Parent may challenge the identification, evaluation, placement, manifestation determination, alternative ed placement, FAPE
  • And so may the District

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Due Process Hearing - When

  • When might the District request a hearing?

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Due Process Hearing - How

  • Parent or district must file:
    • Written request
    • With name of student, school, problem, facts related to problem and proposed resolution
    • Request to school & MDE
      • And if the request is not sent to MDE, the school must do so in 48 hours

This Photo by Unknown Author is licensed under CC BY-SA-NC

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Hearing Time-Lines

  • Within 5 days of filing – Telephonic pre-hearing conference
  • Withing 15 days – Sufficiency Objections
  • Within 10 days or ALJ’s Ordered timeline – Answer by District
  • Within 15 days – Schedule a resolution meeting

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Resolution Meeting

  • Not settlement conference
  • Opportunity to resolve claims
  • Admissible

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Other ADR

  • Mediation
  • Conciliation

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Parents’ “Fire Power”

  • IEE
  • MDE Complaints
  • Other

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Records & Exhibits

  • Education Data
  • Desk Drawer Notes
  • Exhibits are due 5 days before hearing
  • Expert Reports

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Hearing preparation

  • Expert Witnesses
  • Witness preparation - 8-10 hours
    • Outline of questions for district and for parent

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Questions?

  • I hope I don’t see you this year. I mean that in the nicest way….

This Photo by Unknown Author is licensed under CC BY-SA