Monday, October 16, 2017
Tuesday, October 10, 2017
This is another in a periodic series on the nuts and bolts of special education law. The series is intended as an overview of key concepts for beginners and a review for those readers who have been around the block.
The citations for information about due process hearings are:IDEA, § 615(f); 34 C.F.R. § 300.507 to .515
Concerning the burden of persuasion at due process hearings...
Schaffer v. Weast 546 U.S. 49, 126 S.Ct. 528, 44 IDELR 150 (2005). The SupremeCourt held that the burden of persuasion in an IDEA due process hearing is upon the party challenging the IEP. The “burden of persuasion” involves which party loses if the evidence is closely balanced. In any civil legal proceeding, if the evidence for both sides is equal, the party with the burden of persuasion loses. The Court exempted from its decision, however, the burden of persuasion applicable in those states that have laws or regulations placing the burden upon the school district. Note that the burden of persuasion is not the same as the burden of going forward, which concerns which party goes first in presenting evidence. To increase confusion, both the burden of persuasion and the burden of going forward are loosely referred to as "burden of proof" in legal circles. (I'm not sure why!)
Concerning the IDEA due process hearing process, the Court in Weast noted that such hearings are deliberately informal. The Court went on to note that the IDEA due process hearing was set up by Congress with the intention of giving the hearing officers the flexibility they need to ensure that each side can fairly present its evidence.
Monday, October 9, 2017
Tuesday, October 3, 2017
October is National Disability Employment Awareness Month. Here is the U. S. Department of Labor NDEAM website. NDEAM started in 1945; here is a timeline. Here are some useful resources. This page has some resources for educators about this celebration.
Related to this topic is the transition requirement under IDEA for children with IEPs as they approach life after secondary school. Here is our post explaining transition requirements. Here is a post about a GAO report concerning transition for children with autism.
Monday, October 2, 2017
Friday, September 29, 2017
This is another in our ongoing series on the basics of special education law. These posts are meant to be an introduction for those new to the field and a refresher for the seasoned veterans.
A prevailing parent can generally get their attorney's fees from a court. IDEA §615(i)(1)(3). They are not awarded by hearing officers but are awarded by the court. Since 2004, a prevailing school district may get attorney's fees from a parent or parent's attorney if the case was frivolous or filed for improper purposes. IDEA §615(i)(1)(3)(b)(ii)and(iii).
Expenses-Expert witness fees
In Arlington Cent. Sch. Dist Bd. of Educ v. Murphy 540 U.S. 291, 126 S.Ct. 2455, 45 IDELR 267 (6/16/06) the Supreme Court ruled that a parent who prevails in an IDEA case is not entitled to recover expert witness fees under the Act’s provision allowing recovery of reasonable attorney’s fees and costs. The parents cited the legislative history of the Act- including the joint statement of the House/Senate Conference Committee which stated that “The conferees intend the term ‘attorney’s fees as part of the costs’ to include reasonable expenses and fees of expert witnesses...” The 6-3 majority of the Court, however, rejected the parents’ argument, holding that “costs” is a legal term of art which does not generally encompass expert witness fees. BecauseCongress used the legal term of art “costs,” rather than “expenses,” the Court found that there is no need to review the legislative history. Thus the Court held that a prevailing parent in an IDEA case is not entitled to be reimbursed for expert witness fess.
But See, MM & EM ex rel SM v Sch Dist of Philadelphia 66 IDELR 181 (ED Penna 11/3/15) Mgst recommended that parent be awarded IDEA expert witness fees under §504. Finding that a denial of IDEA FAPE is sufficient- no intentional discrimination necessary where parent had waived compensatory damages- and expert witness fees are available under 504; MW & DB-W ex rel DW v Sch Dist of Philadelphia 68 IDELR 36 (ED Penna 7/22/16) Where parents had proven IDEA violation of denial of FAPE, Court awarded expert witness fees under §504.
Tuesday, September 26, 2017
In a recent interview, Secretary of Education, Betsy DeVoss stated that special education regulations continue to get piled on and that they are cumbersome and burdensome for school districts. She also stated that it would be fair to ask Congress what adequate funding levels from the feds should be.