Monday, April 20, 2009

Overlegalization of Special Ed Disputes - Part III

Before I get to the possibility of changes to the due process system in a future post, a number of people responded to the most recent post with some good questions. Some are happy with the due process hearing system, many are not. One thing that is clear is that the system isn't working the way the folks who set it up meant it to work. There is a lot more court-like behavior than not in a hearing.

Even the name "due process" hearing supports the notion that those who designed the system envisioned something more like a welfare hearing than the IBM v. Xerox trial. Even where the hearing officer is managing the case carefully, the time involved is extreme. One of the reasons that the Supreme Court approved reimbursement for unilateral placements in the Burlington decision was the extraordinary length of time it takes to navigate the due process system and subsequent court appeals.

A number of readers have asked for the states that generate 80% of all due process cases. My numbers may be old, but I suspect that they are still valid. According to the GAO study, the key states are Washington, DC (by far the league leader in these stats), California, New York, New Jersey, Pennsylvania and Maryland. I believe the current statistics are comparable, although you have to be very patient to dig them out. Here's a link.

Thanks for the great questions and responses. In the next post in this series, I'll take a look at some possible changes in the due process hearing system.



8 comments:

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  2. Hi Jim: Presently I am on my "merry" way to a due process hearing. This process is expensive, time consuming, and a wear on the nerves. The "child" is no longer the focus anymore in my case, and we are afraid of an appeal after the hearing even though we may prevail. So, here we are on pins and needles and on the verge of letting "them" have their way even though our case is very strong. I totally agree that this process--prehearing conference, settlement conference is more court-like than necessary. The focus should be on the child, and not a single thing else. The opposing party has absolutely no empathy for our child and uses tactics that remind me of the corporate world.

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  3. Thanks LMB,

    I appreciate your kind words.

    Jim

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  4. Well said Anon,

    Your feelings are shared by many people I have talked to. There must be a way to delegalize the system without compromising anybody's rights.

    Jim

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  5. We had an interesting experience in a recent IEP meeting and a bit of a revelation. It comes down to the fact that parents (at least as the system is constructed right now) need to understand that the process is just like any other negotiation. The school administrators (note, not the teacher who is virtually powerless in IEP meetings) are there to say no to as many things as they think they can get away with. You need to be able to attack the others arguments and have a BATNA (best alternative to a negotiated agreement). Unless you think out your strategy and know what other options you have, you are coming in deceidely behind the power curve. In a negotiation class I once took, the instructor noted that in negotiating a salary, only a person with no other options accepts the first salary offer an employer offers. Similarly, parents should understand that they shouldn't immediately accept whatever the school offers. There are a number of different negotiation strategies and I think parents would be well served by advocates to read a book or two on the topic before going to an IEP meeting. I wish it were simply about what a child does (or doesn't) need but the system just isn't about that...it's about money and budgets and the sooner parents come to terms with that fact, the better off we are.

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  6. while "Anonymous" may be on the way to a due process hearing, we just finished one. The hearing itself lasted 8 days. It was one of the most difficult things I have ever had to go through -- my son's diagnosis of autism being questioned even after their own contracted evaluator confirmed our original assessment results, being characterized as unreasonable and hysterical parents who want the world for their child when they are only entitled to appropriate, finding out that Prior Written Notice we requested to explain the "team's" placement decision was written by the district's lawyer, that the 5 emails I sent requesting a meeting to address getting my son services while moving forward with due process/mediation were never answered because a lawyer advised the school district personnel not to answer me, and so much more, including the district's false assumption that by my not signing the IEP meant that I was refusing services. Not only have we had to provide the services to our son that the school district has failed to, but we've had to exhaust all resources to just get to and get through the due process case. Now, we have to wait another month to get a decision by the ALJ. In the mean time we have to start paying off huge legal bills, not knowing if we will be reimbursed. The health system is broke, the education system too, let's just home the justice system is not.

    Please take a moment to look at the following http://tinyurl.com/owenlegal thanks.

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