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Special Education Advocacy: Protecting the Rights of Students with Disabilities


Special Education Advocacy: Protecting the Rights of Students with Disabilities LAF Children & Family Law Practice Group Education Project February 7, 2012 – PowerPoint PPT presentation

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Title: Special Education Advocacy: Protecting the Rights of Students with Disabilities

Special Education AdvocacyProtecting the Rights
of Students with Disabilities
  • LAF Children Family Law Practice Group
  • Education Project
  • February 7, 2012

Welcome to LAFs Pro Bono Education Law Project
  • The project
  • Scope of todays training Special Education
    Special Education Discipline
  • What we are not covering Representing students
    at expulsion hearings
  • Format We will follow a case through the LAF
    referral process and through the law.
  • Refer to the manual for an acronym cheat sheet

Meeting the LAF Special Pro Bono Project Team
  • Lizzy Ullman
  • eullman_at_lafchicago.org
  • 312.229.6359
  • Contact Lizzy with questions about the panel or
    any cases you have accepted.
  • Erin Han
  • Senior Attorney and Trainer for the Education
  • Mara Block
  • mblock_at_lafchicago.org
  • Contact Mara if you would like to schedule a pro
    bono event at your firm or if you have general
    questions about LAFs pro bono projects or

  • LAF helps poor families and individuals to
    resolve their non-criminal legal issues and get
    back on track. LAF's more than 80 full-time
    attorneys and staff provide comprehensive free
    legal services for civil problems, including
    domestic violence, consumer fraud, and unfair
    evictions. We make equal justice a reality in
    metropolitan Chicago and break the cycle of
  • For over 40 years, LAF has been providing
    professional legal services to tens of thousands
    of people in metropolitan Chicago. LAF relies on
    private donations to fulfill its mission.

LAF Organizational Structure
Task Forces and Projects
Sources of Special Education Law
  • Federal Law
  • IDEA (Individuals with Disabilities Education
    Act) (20 U.S.C 1400, et seq.)
  • Regulations at 34 C.F.R. 300.1 et seq.
  • Section 504 of the Rehabilitation Act of 1973
    (Section 504) (29 U.S.C. 794)
  • Standard Disability that substantially limits
    major life activity, in this case learning.
  • Limitations No additional discipline
    protections, student need not benefit from the
  • Regulations at 34 C.F.R. 104, et seq.
  • Americans With Disabilities Act (ADA)
    (Provisions largely overlap with student right s
    under Section 504)
  • Key Question Does the disability adversely
    affect educational performance?
  • Records Requests FERPA
  • Illinois State Law
  • Illinois Administrative Code 23 Ill. Admin.
    Code 226.1 et seq.
  • Records Requests ISSRA (15 days to reply)

  • Accepting and intaking a case

Getting on the Panel
  • Email Lizzy to make sure that you are on the
    panel if you are interested in receiving
    referrals on education cases. Watch for emails
    to go out when cases are available. If you have
    a particular interest in specific types of cases
    or cases against particular school districts, let
    Lizzy know that.

Receiving a Referral Email
  • Hello, Pro bono Team!
  • LAF has a new education case ready to refer to an
    attorney for representation.
  • Student is a 11-year-old girl in 5th grade at
    Neighborhood School. Parent is concerned because
    Students grades this year are very low, her
    standardized test scores are below grade level,
    she has been acting out in class and suspended
    twice for one day. Parent told the teacher she
    was concerned and 4 weeks ago she emailed the
    principal asking for Student to be evaluated for
    special education. The school never responded
    formally to her request, but the teacher
    mentioned that there is no funding right now for
    special education. Student was recently
    diagnosed with ADHD.
  • Based on the information we have, we believe that
    Student should be evaluated for special education
    services and likely found eligible in the
    category of OHI, however, the evaluations may
    show that another category is more appropriate.
  • The attorney who accepts this referral will want
    to begin by reading my notes, interviewing Parent
    and reviewing Students school file. The
    attorney will want to send a representation
    letter requesting an evaluation and if the school
    doesnt comply file a Compliance Complaint. When
    the school agrees to evaluate the student, the
    attorney will want to participate in the domain
    meeting. Following the evaluation, the attorney
    will want to participate in the eligibility
    conference and IEP meetings.
  • Please contact Lizzy at eullman_at_lafchicago.org if
    you have any questions or are interested in
    accepting this referral.

Accepting the referral
  • Email/call Lizzy
  • Ask for the conflict check information and get
    this conflict check run as soon as possible.
  • If you have no conflicts, confirm with LAF that
    you will accept the referral. Lizzy will arrange
    to have the file sent to you, electronically if
  • Make an appointment to meet the client and to get
    your retainer signed.

What should you discuss in the initial interview
  • Who is your client?
  • Because the parent holds the childs education
    rights (pursuant to federal law) in special
    education matter, the parent is your client in a
    special education case.
  • Get a release from the client to receive records
    (cumulative/full education file) from the
    school pertaining to the student.
  • Confirm how well the current status of the case
    matches the referral information you received.
    Confirm important information, i.e. any pending
    dates or communications with the school as well
    as the parents goals.
  • Building a rapport with your client (parent) and
    the student
  • Discuss confidentiality and need to maintain open
  • Involve the student in your advocacy when
  • Discuss transportation, communication issues and
    determine how you and the client can best work
  • Check in with your client on a weekly basis.


Who is eligible for special education services?
  • Federal law recognizes the following categories
    of disabilities (34 CFR 300.8)
  • Mental Retardation (In Illinois will often read
    as a cognitive impairment in the IEP)
  • Hearing impairment
  • Speech or language impairment
  • Visual impairment
  • Orthopedic impairment
  • Autism
  • Deaf-Blindness
  • Traumatic brain injury (TBI)
  • Multiple disabilities (rarely used)
  • Emotional disturbance (ED)
  • Other Health Impairment (OHI)
  • Specific Learning Disabilities (SLD or LD)
  • Per state law, Developmental Delay is an
    available category in Illinois until 9 years old.

Emotional Disturbance (ED)
  • No specific diagnosis requiredsimply must
    exhibiting one or more of the following
    characteristics over a long period of time and to
    a marked degree that adversely affects a childs
    educational performance
  • Inability to learn that cannot be explained by
    intellectual, sensory, or health factors.
  • An inability to build or maintain satisfactory
    interpersonal relationships with peers and
  • Inappropriate types of behavior or feelings under
    normal circumstances.
  • A general pervasive mood of unhappiness or
  • A tendency to develop physical symptoms or fears
    associated with personal or school problems.

Other Health Impairment (OHI)
  • AD/HD can be included here. You must be able to
    argue that the AD/HD adversely affects education.

Specific Learning Disabilities (SLD or LD)
  • See 34 CFR 330.8(c)(10), 300.307, 300.309 23 Ill
    Admin. Code 226.130
  • Severe discrepancy between intellectual ability
    and achievement (22 points or 1.5 SDs)
    processing disorder
  • Response to research based intervention

Who is often overlooked?
  • Students exhibiting behavioral problems are often
    overlooked for special education eligibility.
  • Often the behavior is chalked up as a choice of
    the student rather than a manifestation of a
  • Often the impact that the behaviors have on the
    education are not recognized because they are not
    academic but social and/or result in time out of
    class. However, these factors still constitute
    an impact on education.
  • Possible categories of eligibility LD, ED, OHI


Steps in the Eligibility ProcessOverview
  • Request for evaluation
  • Domain meeting to determine areas in which to
  • Evaluation by the school
  • Eligibility conference to determine eligibility
  • Drafting IEP

Legal Remedies Available
  • At any point where this process derails, the
    parent (through her attorney) has the following
    legal remedies
  • State compliance complaint, filed with the
    Illinois State Board of Education (ISBE)
  • This is a state investigation, so no further
    action is required once you file. You will not
    participate in a hearing or put on your case.
  • When to use Only available when there is a
    clear legal violation, not a disagreement about
    what is appropriate for the child.
  • Due process administrative hearing, filed with
    the school district
  • An impartial administrative hearing office will
    be assigned by the State and an administrative
    hearing convened where you would put on your case
    before the hearing officer.
  • When to use May use instead of a compliance
    complaint for legal violations, but may also use
    for disagreements about what is appropriate for
    the child.
  • Federal TRO/Injunction

Students for Services
  • A request for a case study evaluation (CSE) or
    full individual evaluation (FIE) initiates the
    eligibility process.
  • Legally, this request should be in writing,
    signed by the parent.
  • However, schools are also obligated under Child
    Find to seek out students with special education
  • So while a request that does not meet the
    requirements above (is not in writing or not
    signed by education rights holder), may not
    trigger the precise legal timelines, nonetheless,
    one can argue that the school is put on
    heightened notice and should likely evaluate the
    student anyway.

Timelines when CSE has been requested (in writing)
  • District must decide whether to conduct the
    evaluation within 14 school days of receiving the
    request and take one of two actions (23 Ill.
    Admin. Code 226.110 (c)(3))
  • Option 1 The district will agree to conduct
    the CSE.
  • Must convene a domain meeting to determine
    which assessments should be done to complete the
  • Meeting should include parent and other
    individuals having knowledge and skills necessary
    to administer and interpret evaluation data.
  • The school should request the parents signature
    to proceed with the testing.

Timelines when CSE has been requested
  • Option 2 If the district decides not to
    conduct the evaluation, then it must provide the
    parent with notice that conforms with the
    following requirements of 34 CFR 300.503(b)
  • Describes the refused action
  • Explains why the district will not conduct the
  • Describe any evaluations, records, assessments or
    reports used in making decision not to evaluate
  • States the parents right to legal protections
    (i.e. right to file for due process) and means to
    obtain a copy of these rights
  • Gives sources for the parent to contact to obtain
    assistance in understanding notice
  • Gives a description of other options that Team
    considered and the reasons why they were
    rejected and
  • Description of other factors relevant to refusal.

Return to Hypo
  • Is the school in violation of the law at this
    juncture in your hypothetical case?

Common Stall Tactics when a CSE is requested
  • Response to scientific, research-based
    interventions (RTI)
  • Per 23 Ill. Admin. Code 226.130 (b), while a
    school may use this as part of an evaluation
    process, it may not use a students participation
    in this process to deny an evaluation.
  • School Based Problem Solving
  • Student Study Teams (SSTs)
  • 504 plan

Hypo continued
  • You start to draft a compliance complaint, given
    the schools failure to respond to the CSE
    request. In the meantime, you also draft a letter
    to the school (ccing the attorney for the
    district), informing the school of your
    representation of Student B. Within one day, the
    school sends you a formal denial of the request
    to evaluate the student. In the denial, the
    school states that it hasnt yet had time to
    conduct RtI on the student.
  • What are your options now? Can you still file a
    compliance complaint? Is the denial valid?

  • Suppose instead that the school responded to your
    representation letter, not with a denial, but
    with a notice of a domain meeting, to start the
    special education testing
  • What happens next?

Advocating at a Domain Meeting
  • Probably the least contentious meeting you will
  • Important to include all areas of suspected
  • Dont overlook speech and OT.
  • Its up to you and the client whether you will

Timelines when school agrees to evaluate
  • Once the education rights holder signs the
    consent for testing, the district has 60 school
    days (23 Ill. Admin Code 226.110(d)) to complete
    the following
  • The testing identified at the domain meeting
  • A meeting to determine the students eligibility
    for special education services AND
  • An IEP meeting, if the student is deemed
    eligible, to develop an IEP for the student.

The Eligibility Conference
  • Following the CSE and before the end of the 60
    day timeline, the school must convene a meeting
    to review the testing and to determine the
    students eligibility for special education
    services under federal and state law.
  • Advocacy Tip Some schools call an eligibility
    conference a multidisciplinary conference or
    MDC (not to be confused with an MDR.)

Advocacy tips at the Eligibility
  • One of the most important meetings you will
  • Be sure to get the assessment reports in advance
    of the meeting or consider rescheduling.
  • Review the reports and research areas of
  • Start with the summary to get an overview
  • Make sure that all subtests are included.
  • Be sure a BASC/Brief or other behavioral scale
    are included if there are emotional issues.
  • Make sure a cognitive test was administered, even
    if the school wishes to rely on RtI for
    considering LD.
  • Make sure the tester is taking into consideration
    time spent out of school and social relationships
    as impact on education.
  • Make sure that any outside evaluations submitted
    by the parent are considered by the evaluator.
  • Make sure exclusionary factors like time out of
    school are not exaggerated.

Who should attend an Eligibility conference or
IEP meeting?
  • (See 34 CFR 300.321 and 23 Ill. Admin. Code
  • Parents of the child (education rights
    holderfoster parent, surrogate if no parent)
  • General education teacher (if child is in general
  • Special education teacher or provider (if
  • Advocacy Tip Be pro-active about which teachers
    you want to attend.
  • Individual who can interpret evaluation results
  • Representative of public agency who can make
    commitments for provision of resources and be
    able to ensure that the services in the IEP will
    be implemented
  • Usually the SSA for TDS placements.
  • Bilingual specialist or teacher if needed
  • A person knowledgeable about positive behavior
    strategies, if behavior impedes learning (usually
    school social worker)
  • At discretion of parent or agency, other
    individuals having knowledge or special expertise
    regarding the child
  • The child where appropriate

What if a student is found ineligible for an
  • If you really think a student may be eligible,
    dont give up if the school claims no disability
  • Was the student tested in all areas of suspected
  • Did the parent have the opportunity to present
    additional information about the students needs?
  • Draft a dissent right at the meeting, have
    everyone who agrees with you (especially the
    parent) sign it, and have it attached to the
    meeting notes.
  • You/parent can draft a dissent at any school
  • The education rights holder has a right to
    request an independent educational evaluation
    (IEE) at public expense if s/he disagrees with
    the districts testing. (34 CFR 300.502)
  • The district must either pay for the evaluation
    or take the initiative to file for due process.
    Simply saying no and doing nothing is not a
    legally appropriate alternative, but it happens
    all the time if left unchecked.
  • The parent may not be required to provide a
    reason for his/her disagreement with the
    districts testing.
  • Due Process

What if your client is found eligible for an IEP?
  • Usually, the meeting will immediately become an
    IEP meeting and an IEP will be drafted on the
  • If there is insufficient time, an IEP meeting can
    be scheduled separately, but must still occur
    within the 60 day timeline.
  • What if you disagree with the eligibility
  • Advocacy Tip If you feel that the meeting is
    being rushed, dont be afraid to slow things down
    and to ask for a subsequent meeting to be

What are the components of an IEP
  • Present levels of performance and measurable
    annual goals
  • How disability affects childs ability to access
    general curriculum
  • LRE (least restrictive environment)
  • Accommodations or modifications
  • Related Services
  • counseling, transportation, classroom aid, etc.
  • Transitional Services
  • For IEP to be in effect when child is 14.5
  • Employment, education, independent living skills
  • Transfer of rights at age 18
  • Start informing child 1 year earlier

A special word about Related Services
  • The definition for Related Services is
    extremely comprehensive under 34 CFR 300.34(a)
  • Related services means transportation and such
    developmental, corrective, and other supportive
    services as are required to assist a child with a
    disability to benefit from special education, and
    includes speech-language pathology and audiology
    services, interpreting services, psychological
    services, physical and occupational therapy,
    recreation, including therapeutic recreation,
    early identification and assessment of
    disabilities in children, counseling services,
    including rehabilitation counseling, orientation
    and mobility services, and medical services for
    diagnostic or evaluation purposes. Related
    services also include school health services and
    school nurse services, social work services in
    schools, and parent counseling and training.
  • Thus, schools cannot claim, We do not provide
    that service, if a student requires it to
    benefit from special education.
  • These are generally available irrespective of
    eligibility category

What Placement Will Meet the Students Needs?
  • This should be determined after the development
    of the IEP.
  • Sometimes this isnt practical, so make a
    judgment call.
  • Must respect the LRE requirementbut must be LRE
    for the child in question
  • Hierarchy of possibilities
  • Mainstreaming
  • Mainstreaming with supports in the general
    education classroom (inclusion)
  • Mainstreaming with pull out
  • Placement in a self contained special education
    classroom in a mainstream school (possible pull
    out for lunch or extra curricular activities).
  • Therapeutic Day School (TDS) (also called
    separate day placement)
  • Residential

Other occasions for IEP meetings after the first
IEP drafting meeting
  • Annual Review Every IEP must be reviewed and
    renewed on an annual basis.
  • Three-year review. At least every 3 years, the
    student should receive a new CSE to determine the
    students continued eligibility for services as
    well as to make sure that the services are still
    matching the disabilities.
  • In addition to these mandatory timeframes for
    holding annual IEP reviews and 3 year
    re-evaluations, a parent may request an IEP
    meeting at any time. (23 Ill. Admin. Code
  • When such a request for an IEP meeting is
    received from a parent, the school has 10 days to
    reply to the parents request, with the same
    requirements under 34 CFR 300.503 as in response
    to a request for an initial evaluation.
  • In these situations, it is often helpful to give
    the case manager an outline of your concerns in
    advance of the meeting.

Returning to Hypo
  • You successfully advocated for Student and she
    was found eligible for an IEP. She remained
    placed at her Neighborhood School with additional
    supports and was successful for a short time
    period. Now, 9 months later, she is no longer
    making progress under her current IEP. Student
    is not reaching her goals, and the school is
    frequently sending her home, sometimes with
    official suspensions and sometimes informally
    without officially suspending her. Please help
    this student benefit from her IEP and remain in
    school on a daily basis.

Other occasions for IEP meetings
  • Where a student is transferring from another
    school district in IL and already has an IEP, the
    new district has 2 options under 23 Ill. Admin.
    Code 226.50(a)
  • Option 1 Immediately adopt the out-of-district
    IEP and implement it as written.
  • This can happen without an IEP meeting.
  • The education rights holder must agree.
  • Option 2 Develop a new IEP for student.
  • The parent must give the parent notice and a date
    for an IEP meeting within 10 days of the
    students enrollment.
  • For as long as it takes to develop the new IEP,
    the receiving district must implement services
    comparable to those described in the IEP from the
    former district.
  • This option must be followed where the student is
    transferring from out-of-state.

Amending an IEP without a meeting
  • This is possible between annual reviews (see 34
    CFR 300.324(a)(4))
  • If the parent and school agree
  • If the Team is subsequently informed of changes
  • Advocacy Tip While this may seem like and often
    is a simple option, dont go this route where
    there is a tendency toward confusion or
    miscommunication between the parties.

When will a new or amended IEP be implemented?
  • Pursuant to 23 Ill. Admin Code 226.220 (a), the
    IEP shall be implemented within 10 days.



School Discipline
  • Student Code of Conduct.
  • Suspensions
  • Expulsions
  • General principle of discipline and disabilities
    is that students with documented disabilities
    should not be disciplined for behavior that is a
    manifestation of those disabilities.

Disciplining Students with IEPs
  • Suspensions
  • Special education students cannot be suspended
    more than 10 total days per school year.
  • Informal removals are not an appropriate way to
    avoid this rule. Parents should only be called
    for removal when a suspension notice will be

Disciplining Special Education Students Change
of Placement defined
  • Change of Placement is any removal of a student
    as a form of discipline (as opposed to a decision
    by an IEP Team that a new placement is needed in
    order to provide the student with FAPE.)
  • Attempts to expel or unilaterally and permanently
    change the placement by a school district
    obviously constitute change of placements.
  • Exceeding the allowed 10 days of suspensions in a
    given school year also constitutes a change of
  • Change of Placement, tends to have negative
    connotations under special education law and does
    not generally refer to a joint decision by the
    Team to move a student to a new school.

Disciplining Special Education Students MDR
  • In order to legally change a special education
    students placement in the manner described
    above, the school must 1st hold a Manifestation
    Determination Review (MDR)
  • This is a meeting of the IEP Team
  • Must determine
  • Whether the behavior in question is a
    manifestation of the students disability or
  • Whether the conduct was a direct result of the
    districts failure to implement the IEP.
  • If the answer to either of the prior questions is
    yes, then the school cannot proceed with the
    change of placement, expulsion, etc.
  • If the answer to both of the prior questions is
    no, then the student may be disciplined like
    any other non-special education student.
  • HOWEVER, if the student is expelled, the district
    must provide continued special education services
    during the period of the expulsion.

Disciplining Special Education Students
  • EXCEPTION to MDR Rule 45 day emergency changes
    of placement
  • Only for the following incidents
  • Carries weapon to school, on school premises, or
    to or at school function
  • Knowingly possesses or uses illegal drugs, or
    sells or solicits the sale of a controlled
    substance while at school or at school function
  • Has inflicted serious bodily injury to another
    person while at school or a school function.

A New Referral
  • Hello Pro Bono Team,
  • A new referral has come into LAF. Student B is a
    16 year old boy who currently has an IEP for OHI
    and is placed at Neighborhood School in a
    self-contained classroom.
  • Three days ago he was engaging in a verbal
    argument with a teacher in the hallway and then
    hit him with an open hand across the cheek.
  • Parent tells you the school wants to meet with
    her, but she doesnt know the purpose of the
    meeting. The date of the meeting has not been
    scheduled but the school tells her it will be
  • If you are interested in accepting this referral
    please contact Lizzy at eullman_at_lafchicago.org as
    soon as possible.

  • State Compliance Complaints
  • Use this remedy when the school district is
    violating a timeline or failing to follow the IEP
    (an obvious legal violation).
  • Administrative Due Process Hearings
  • Use this remedy when there is disagreement
    between the school district or parent re what
    the student needs.
  • Issues appropriate for a compliance complaint may
    also be brought here.
  • Federal TRO/Injunction

Filing a State Compliance Complaint
  • Do not use when there is a dispute about what a
    student needs
  • Use for
  • Systemic problems
  • Clear procedural violations or clear non
    compliance with an IEP.
  • How it works
  • ISBE has 60 days to investigate claim.
  • If parent files for DP during investigation, the
    investigation will be halted.
  • Parent can still file DP after, and the results
    of investigation can be introduced as evidence.

Compliance ComplaintNuts Bolts
  • Complaint in the form of a letter addressed to
  • The Illinois State Board of Education Special
    Education Services, Division100 North First
    Street, Springfield, Illinois 62777-0001
  • See sample in manualsimilar to due process
    request, but probably there wont be as much
    legal analysis since this is a clear legal
  • While ISBE will do an investigation, provide
    attachments and exhibits where possible
  • ISBE form
  • http//www.isbe.net/spec-ed/html/complaint_investi
  • Only fill out basic info and reference your
  • Release signed by the education rights holder
  • You can use a standard release of information
    where the client gives ISBE permission to release
    information to you (so that you can receive the
    results of the investigation.

Requesting an Administrative Due Process Hearing
  • Reasons to request a hearing
  • To resolve a dispute relating to the
    identification, evaluation or educational
    placement of a child with a disability, or the
    provision of FAPE to the child (34 CFR
  • Note that stay put will be in effect once the
    request for due process is filed.
  • Statute of Limitations
  • 2 years from date the parent knew or should have
    known about the basis for the complaint (34 CFR
  • Who bears the burden of persuasion?
  • The party bringing the action bears the burden of
    persuasion following the 2005 Supreme Court
    decision in Schaffer v. Weast.
  • So dont file when it is the Districts
    responsibility to do so (i.e. in response to your
    request for an IEEinstead file a compliance
    complaint to force the District to file.)

Components of your due process request
  • These required components are enumerated under 34
    CFR 300.508(b)
  • Name of the child
  • Address of the residence of the child
  • Name of the school the child is attending
  • A description of the nature of the problem,
    including facts
  • A proposed resolution of the problem

What compensatory services can you request?
  • In your request for due process, always include a
    request for compensatory services to compensate
    for the time in which a student was denied FAPE.
  • Put this in your proposed resolution section.
  • You can be creative herekeep in mind the
    realities of a students busy schedule.
  • 11 tutoring
  • Tutoring programs
  • Expunging discipline records
  • AT referral
  • Related services during the summer
  • Summer school to which the student is not
    otherwise entitled
  • Extension of special education eligibility

Standard Format at LAF
  • While the request can take different formats
    (i.e. numbered complaint on pleading paper),
    LAF has traditionally done these in the form of a
    letter to the CEO (for CPS).
  • Note, however, that the 2004 IDEA reauthorization
    includes a requirement of specificity in the
    complaint that requires a thorough understanding
    of the law and factsstill think of this as a
    formal legal document.
  • Contact LAF for samples.
  • CC and fax or mail copies to
  • Jean Claude Brizard (hand deliver or mail
    certified mail/return receipt)
  • Luis Rodriguez (CPS due process and mediation) or
    district counterpart (email courtesy copy).
  • Andy Eulass (ISBE) (email courtesy copy)
  • Client

  • The attorney for the school district should
    contact you within 15 days of receiving the due
    process request to try to convene a Resolution
    Session under 34 CFR 300.510.
  • Parent and district may mutually waive.
  • Parent and district may agree to Mediation in
    lieu of resolution session.
  • Resolution session should include members of the
    Team requested by the parent.

  • Once you file, a hearing officer (HO) will be
    assigned and will contact you within 30 days.
  • As soon as your HO is assigned, make an immediate
    decision about whether to have HO substituted
    under 105 ILCS 5/14-8.02a(f-5) as a matter of
  • The HO will set a prehearing conference date,
    which will happen when the 30 day resolution
    period has expired.

  • The 45 day timeline for the due process hearing
    will start 30 days after the district receives
    the due process request.
  • This includes the 15 day window for holding the
    Resolution Session.
  • Can start before the 30 days are up if (see 34
    CFR 300.510(c)).
  • Parties waive resolution
  • Parties concur that agreement is not possible
  • Will start with prehearing conference
  • Usually conducted by telephone
  • Must submit prehearing conference disclosure
    statement in advance of the call.
  • LAF has samples
  • If you are making substantial progress toward
    settlement, you can probably avoid submitting the
    disclosure statementrequest a continuance
  • Final changes to your witness and exhibit lists
    must be finalized 5 days before hearing.
  • By the end of the 45 day timeline, the hearing
    must have been held and a written decision
    rendered by the HO.
  • By mutual consent, the parties can delay this
    timeline. (23 Ill. Admin. Code 226.640(b)(1).

Expedited Hearings in Discipline Cases
  • An expedited timeline will occur under 34 CFR
    300.532(c) under the following circumstances
    involving discipline
  • Where a 45 day emergency removal took place
  • Where a parent is challenging a manifestation

In reality, most cases settle
  • This can happen in a number of ways
  • Agreement following resolution session
  • Agreement following formal mediation
  • Settlement Agreement drafted as a result of phone
    and email settlement discussions conducted with
    opposing counsel between the time that the case
    is filed and the hearing.

Preparing for Hearing
  • Each Hearing Officer (HO) has different
    preferences, which are best clarified at the PHC.
    Make sure you are prepared to discuss the
  • Will the child attend the hearing?
  • Is interpretation required?
  • How does the HO like to handle subpoenas?
  • Does the HO accept post-hearing briefs?
  • Does the HO prefer 2 separate exhibit packets or
    just one?
  • Will the hearing be open or closed?
  • Location of hearing (likely at school)
  • How many days do you expect the hearing to take?

Legal OptionsCompliance Complaint vs. Due
Process Hearing
  • This generally turns on whether you are seeking
    to enforce a statutory timeline or an IEP with
    which you agree (CC or DP) to challenge a
    decision or IEP with which you disagree (DP).
  • You can do both, but due process will always
    trump CC.
  • 1 year statute of limitations for CC, 2 years for
  • You do not have to put on a hearing or present
    witnesses or evidence for a CC, only for a DP.
  • You can request comp ed for either.

  • OR

IEP vs. 504 Plan
  • Beware of accepting a section 504 plan as a
    substitute for an IEP.
  • Only appropriate where the disability (diabetes,
    etc.) does not impact educational performance.
  • AD/HD usually invokes IDEA eligibility.

How do you convert a discipline case to a special
education case?
  • If student is already receiving special education
    services, follow the MDR process.
  • If student is not yet a special education
    student, but parent has sent a written request to
    the school to have him tested that was either
    ignored or inappropriately declined, file due
  • If student is not yet a special education
    student, but there were obvious red flags that
    should have triggered the schools child find
    obligations, file due process.
  • Ordinarily, any of the above actions will halt
    the expulsion proceedings until the resolution of
    the MDR/due process procedures/hearing.


Advocacy Tip Advocating at School Meetings
  • Remember that the parties will be working
    together for some time, so, where possible, try
    to preserve relationships while still getting
    optimal services for your client.
  • Let the school take the lead if it wants to do
    so. Dont take the offensive until you have
    cause to do so.
  • Ask questions before making arguments.
  • Share your strategy with your client before the

Advocacy Tips Advocating at School Meetings
  • The federal standard is FAPE (Free Appropriate
    Public Education)
  • Appropriate, not best
  • Be specific
  • Goals should also be measurable
  • If you want an individual, 11 aid for a student,
    this must be clearly stated so that the district
    cannot claim that a classroom aid will suffice.
  • Get everything you want somewhere in the IEP in
  • See sample IEP worksheet in the manual
  • Try not to leave without a final, approved
    document in hand.

Advocacy TipStudent not making progress
  • If the lack of progress is related to academics
  • Consider a full re-evaluation, even if you are
    before the normal 3 year time period for
  • Consider if there might be additional or
    different areas of struggle not formerly tested
    (processing disorders, need for services like
    occupational therapy (OT)).
  • Consider the use of Assistive Technology (AT)
    services to benefit the student.
  • Consider an IEE.
  • Consider a change of placement to a more
    specialized, appropriate setting.

Advocacy TipAvoiding Discipline Altogether
  • Try to minimize behaviors before they become
  • Implement the IEP
  • Continue to modify the IEP if behavior is a
    continual issue until the concerns are addressed.
  • Traditional punitive measures are often
    counterproductive with ED students.
  • Make sure appropriate related services are in
    place (i.e. aids, etc.)
  • Positive behavioral interventions should be used
  • Be detailed and creative here. Dont just
    identify the problem behaviors but give positive
    ways to work on the behavior. Be detailed and
    specific. For example, consider chunking the
    day for extremely impulsive kids.
  • Enlist the help of a behavioral therapist or a
    school social worker with special training in
    positive behavioral intervention.
  • Consider a more restrictive placement

In sum
  • Step 1 Assess where your client is at in the
  • Step 2 What are the legal options at this
    juncture? What is most advisable?
  • Step 3 Is now a time to advocate with the
    school or to file?
  • Step 4 Keep track of your timelines along the
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