Due process questions

Discussion in 'Special Ed 101' started by klmno, Apr 10, 2008.

  1. klmno

    klmno Active Member

    Has anyone gone through due process and ended up satisfied with the results- no retaliation on difficult child or family, Iep got adequately implemented, school woke up to issues and addressed them, etc.? Are you glad you went thru the process and was it worth it? About what kind of costs are we looking at- I have heard $8000 to $10,000. (Like I have that in my back pocket LOL)

    Also, I was told it would take a few months for the process- does that sound right? Are filing a complaint with the state DOE, filing for due process, and taking the sd to court all the same thing? I undersstand that mediation is different but I wouldn't waste my time on that, unless I have to for another more effective process. (My feeling is that if the school won't comply with IDEA they won't stick by any non-binding agreement made in mediation.)

    Thanks in advance-

    Oh, difficult child is on an iep already- at least on paper- in reality it is pretty much a joke and although iep meetings result in agreements and signed iep's, the school does what they want and just ignores the rest, IEP or not.
  2. Sara PA

    Sara PA New Member

    Filing a complaint with the state, a due process hearing and a civil lawsuit (taking the SD to court) are three entirely different things.

    I filed complaints when the school district was out of compliance with IDEA regulations (IDEA-speak for not following the regulations). Even with a school friendly compliance officer, one complaint led to a state-mandated policy change at our SD and the other to one-on-one tutoring for my son in all his academic subjects for a full semester's worth of instruction after he had been illegally excluded from school. They were my two biggest wins.

    I filed for due process twice -- once when the SD failed to follow the above mentioned tutoring schedule and once when the SD attempted to force a placement that was completely inappropriate/unwarrented. I won both hearings but I don't know if I won in the long run. We moved out of the first district because we feared retaliation (mostly due to a change in the principal from a good guy to a jerk) but after the second we surrendered and my son quit school. We decided the school district would never move past the psychosis caused by the AD; he was a marked kid. And by then they really hated me!

    I never took either SD to court because I simply couldn't have afforded it had a been able to find an attorney to take our case.

    After paying an attorney to represent my son in the first run in with the school -- an suspension hearing for an incident that never occurred -- and losing, we never paid an attorney to deal with the school again. And my complaints to the state and learning the IDEA regulations reversed everything that happened at the ridiculous suspension hearing. What a kangaroo court.

    by the way, I liked mediation. We may have a biased compliance officer for this area but we had a good mediator and good hearing officers.
  3. Martie

    Martie Moderator

    What a timely question:
    If I get my act together, I will be posting the findings of the Due Process study we conducted last year (qualitative research is VERY SLOW going)

    I do not know if Sara was one of the 9 respondents in the study because it is anonymous, but I hope so.

    The parents on this board win at a higher rate than nationally. It depends on where you live as to whether or not you MUST as a practical matter, have an att'y. In IL, the whole system is very "court-like" and overly legalized. Everyone, including the H.O. are lawyers and they love to jump up and yell, "Objection," but neither court procedures nor rules of evidence apply.

    The cost you quoted would be a huge UNDERESTIMATE for urban IL, but may be correct for where you are. IDEIA specifically REQUIRES that DP rules be followed or any court case will get thrown out for failure to "exhaust administrative procedures." IDEA cases are heard initially in federal, not state, courts. by the way, DP was written into the law to avoid "unnecessary litigation." Hasn't worked out that way. However, only the very rich and the very poor can "afford" court. The rest of us spend what money we have on our kids, or move to another SD or whatever we can manage.

    I personally believe retaliation is a problem based on "the grapevine", but the results that we have do not support that conclusion.

  4. klmno

    klmno Active Member

    Thanks, Ladies! The attny got back with me and said he capped his fee at a little lower rate (for DP) and re-couped the rest if compensatory (sp) damages were awarded. I'm wondering what kind of amount we could get, if any. Also, by the time I added on reimbursable expenses and costs for experts, it probably would be in the range that I was originally told.

    The state has a 1-year time limit for complaints, does due process or court have that same time limit? Worse things happened in 2006, and early 2007, that I feel sure I could win on AND it would also show a pattern or at least that the sd consistently does what they want without regard to the law.

    I really don't like the thought of having to go thru this, but whatever chance my son has is being undermined by the sd's approach to things, time and time again. Someone on a different thread said it sounded like this situation was "toxic" to my son- that word sticks in my mind and rings so true.

    Martie, I don't doubt at all that board members fare better with sd issues, of any sort. The Ed. Spec. told me that I was much more "knowledgable and involved and informed" than other parents they deal with. Maybe she was just trying to blow me some smoke (you know the term I'm avoiding here) but I do think it coould be true- their manipulation and efforts to avoid compliance probably have worked with many others- they worked with me until I found this board. And when she told me that, I was standing there thinking to myself, "I can't take all the credit, this has been a collective knowledge base and a team effort" because I truly felt the strength and power of the board behind me!

    How can I feel any hope that the sd would comply with mediation any more than the IEP that is already in place?
  5. dreamer

    dreamer New Member

    Call me nervous and paranoid, but, it seems to me that after any type of formal complaint process, um, I would be leery of then haveing to deal with this district anymore. There are so many things that can occur that could be "under the radar" and no formal complaint process will follow behind after any ruling and ensure day to day issues.
    Our hearing officer told me that no matter what she did order, it was made pretty clear the sd was not buying in to anything needed for my difficult child and just becuz she ordered anything did not mean the sd would handle anything properly even after due process.

    It is such a sad statement when things degenerate to this level.
    My thoughts are with you. I am so sorry this is occureing.
  6. klmno

    klmno Active Member

    Well, I am still mulling the pros and cons of this over and would value any input on these thoughts:

    1) I think Due Process can cover a violation for the past two years (the state compliant is one year). This would allow the issues of last year's BIP (which outright said one more violation and he's removed- that was his entire BIP they proposed and I refused to sign), manifestation determination and no education for last quarter of school (except the 3 weeks in detention that they counted but that was a joke), along with this year's not complying with IEP- they never used "safe place", at least that I am aware of (they will say they didn't need it but I have emails expressing concerns from teachers on this one) and they haven't initialed homework agenda 2/3 of the time. There is also a sticky one about reduced homework in stressful periods when agreed upon by case manager at school and me. They will find a loophole with that one.

    2) What is really bugging me and I believe to be the root of the problem is that they keep saying, "but his IEP is FOR BEHAVIOR". Well, his diagnosis has changed to mood cycling/bipolar this past year. They have seen proof of his diagnosis. Knowledgable people know how this can effect behavior, memory, cognitive abilities, etc. It is more than obvious that mood cycling and resulting medications effect his ability to do homework, classwork, etc. His grades reflect it. His neuropsychologist evaluations from 2 years ago reflect impairment in memory, executive functioning (organizing), and show borderline adhd. This year's different type of adhd test was inconclusive. I don't think he is adhd- I think the adhd results are like that because of the mood cycling. Yet, because I can really only present two highly qualified child& adolescent psychiatrist reports saying the kid has mood cycling, they refuse to see it as anything other than behavior that should be punished. If he's had a meltdown at home and work doesn't get done, he gets a zero from some teachers and some teachers let him make it up for a lower grade. Then, they ask me why I didn't oversee his homework time. If he sits and class and stares at wall instead of doing anything, they let him then give him a zero, If he disrupts class, he gets sent to the office, not his "safe place". Now this is a mainstream school and he is in mainstream (a couple collaborative) classes, but still, isn't the IEP supposed to address these things and be implemented? All they want, is to look at the whole thing as rewards and punishments for behavior. And, I was told by the ed spec from school that this is preferable over letting the teachers know that he has mood cycling because of what they are taught, they would single him out and treat him differently. As much as I would love to fight that discrimination- how do I prove that Ross Greene's collaborative problem solving works, and that mood cycling and resulting lack of work done is not all intentional behavior, etc? Even with an attorney or advocate at an iep meeting, half of them don't understand mood cycling and wouldn't they end up "buying" the school's team members (which would greatly outnumber us) that '"they are there to treat symptoms and the only symptom he exhibits that effects them is behavior- because lack of completed work, etc., is all intentional behavior and manipulation".

    3) I would much prefer not to fight the whole thing- but there isn't another school around that would do any better- there are private schools where behavior must be great and there are schools for severe behavior problems. He doesn't fit into either- as he saves the raging and meltdowns for home, even when they are triggered by the way school handles things. If I found a way to homeschool the rest of this year, what would I do next year? If I still filed for due process and took him out of this school, the attny told me they wouldn't put much weight on solving the problems when the kid has been removed from that system.

    4) The attny said most of the due process cases get resolved before ever going to court- he said they are settled and implied that there could be compensatory (sp) damages paid. Great, but then the sd is no more bound legally to do anything any differently, right? Wouldn't this mean mediation- which is not legally binding and has no accountability built-in?

    5) It is bad enough that I cringe at the thought of difficult child going to this school every day, but it disgusts me more to think of having another iep meeting with them because no matter what is signed, they do or not do what they want. And the meetings really are BS anyway. I feel like his classification and everything should be reviewed- by someone knowledgable about mood disorders, they told me they would provide this- did they, NO. It all a joke.

    6) And then, there is the issue that Dreamer and I have "discussed" on other threads- there is real valid reason to worry about retaliation against difficult child- the type that could really change the course of his life.

    So, my unofficial poll here- what would you do??
  7. Sheila

    Sheila Moderator

    I can't tell you what would be best in your situation.

    I can tell you that I filed complaints with Texas Education Agency, OCR and OSEP.
  8. Martie

    Martie Moderator

    You situation is very complex and that is why you have consulted an att'y.

    One thing you said that caught my attention: Fees for expert witnesses ARE NOT reimbursable. That was a Supreme Court decision fairly recently, Weast v.? but I am not sure of the cite. I am sure of the information.

    Att'y fees MAY be reimbursable IF the parent is the prevailing party BUT the fees may be reduced at HO. discretion. In IL, the H.O.s reduce fees all the time.

    Here is my general "theory" of DP:

    If you have a young child with very expensive needs (4 year old with autism for example,) the DP is WORTH it.

    If you have an older child with minor needs (reading tutoring) you are almost always better off purchasing services privately than fighting.

    The grey areas are older kids with expensive needs (I privately placed my ex-difficult child in EGBS when the SD would not provide a safe environment for a very suicidal kid---that is not an option for everyone, and it is something we will NEVER recover from financially) OR the SD is trying to "force out" any child with EBD.

    If you read the report on Adult Outcomes I had posted last month, the expulsion rates are shameful. An IEP can keep a child in school, and the DP system can be used to try to prevent the child from either being isolated on homebound or warehoused in an inappropriate facility.

    All of this adds up to, "it depends."

    I wish I could be more helpful.

  9. klmno

    klmno Active Member

    Thanks, Martie & Sheila, right now everything is falling apart. My job, insurance, difficult child's mental health, resulting school issues. I resent having to make the choice between taking my last pennies to gamble on whether or not I can get the sd to get on board and do what they should, or give up on it altogether, then do what? If they know I won't fight for him, this will only get worse. If I fight it and lose, then I have even less resources left to help him.