SPECIAL EDUCATION DISPUTES LITIGATE OR SETTLE: THAT IS THE QUESTION October 25, 2018 Sheraton, Time Square Presented By: Moderated By: Laura J. Granelli, Esq. Beth L. Sims, Esq. Edward J. Sarzynski, Esq. Partner Partner Of Counsel Jaspan Schlesinger LLP Shaw, Perelson, May & Hogan, Sarzynski, Lynch 516 ‐ 746 ‐ 8000 Lambert LLP DeWind & Gregory, LLP 845 ‐ 486 ‐ 4200 607 ‐ 797 ‐ 4839 lgranelli@jaspanllp.com bethsims@shawperelson.com esarzynski@hsldg.com US DISTRICT COURT COMPLAINT EXAMPLE 1 Defendants Named Board President Superintendent 504 Compliance Officer Jr. HS VP School Psychologist Past HS Principal School Health Aide Director PPS School Nurse CSE Chair School Physician Assistant Superintendent HS Principal HS Guidance Counselor Special Education Teacher Tutor School District Alleged violations of IDEA and Section 504 1
US DISTRICT COURT COMPLAINT EXAMPLE 2 Defendants Named Component School District Superintendent Principal BOCES Teacher Alleged Violations of IDEA and Section 504 US DISTRICT COURT COMPLAINT EXAMPLE 1 Relief Requested Declare private school appropriate Reimbursement of tuition and related expenses Attorney and expert fees and costs Tuition reimbursement for education and aides/services from an institution of higher education at parent’s selection $2,500,000 in compensatory and punitive damages (case was filed in 1998) Other equitable and just relief. 2
US DISTRICT COURT COMPLAINT EXAMPLE 2 Relief Requested Attorney’s fees and costs Ten Million Dollars in Compensatory and Punitive Damages (case was filed in 2009) 3
HYPOTHETICAL In the Litigation Central School District, parents of a special education student by the name of Collin Dilemma have brought an Impartial Hearing challenging the appropriateness of their son’s Individualized Education Program (IEP) for the 2018 ‐ 2019 school year. It is the Parents’ contention that the Student’s individual needs resulting from anxiety and ADHD can’t be appropriately addressed in the recommended 15 ‐ 1 ‐ 1 Special Class setting recommended by the CSE. The Parents allege that the public school environment lacks adequate structure for the Student’s distractibility and anxiety. They further allege that there is a dissimilarity of student management and academic needs among the students in the 15 ‐ 1 ‐ 1 Special Class and that the counseling support which was recommended by the CSE is inadequate. HYPOTHETICAL The Parents had a great deal of faith in the Special Class teacher that Collin had during the 2017 ‐ 18 school year, but she accepted a job in a school district out of State. The Parents obtained a private psychological evaluation of the Student during the summer of 2018. The report indicated that the Student has school phobia and anxiety, which are on the rise. The evaluator recommended a small and charming school with additional therapeutic support. The District has not conducted a psychological evaluation in two years. Collin attended the recommended District placement for the first three weeks of September, 2018 and appeared to be making good progress. Then, without advance notice, his Parents unilaterally placed him in the Charming School and filed a Due Process Complaint. The Parents are seeking tuition reimbursement for the Charming School, a private school which offers small class sizes and a supportive and relatively small school environment at a tuition cost of $97,000 annual for a Day Placement. The Charming School is not on the NYSED approved list. 4
HYPOTHETICAL Mrs. Dilemma, the parent of Collin, is active in a District special education parent advocacy group. There are at least 3 other students in the District who have been placed at the Charming School that have not yet brought an Impartial Hearing and one student that attends the Charming School pursuant to a stipulation whereby the District pays for the student’s tuition to attend. The District also has two other Impartial Hearing unrelated requests pending. One of the members of the Board of Education has a child with a disability. The attorney representing the Dilemma family is an accomplished Special Education attorney who bills at $400 per hour. The decisions of the Hearing Officer selected off the rotational list to hear the Dilemma case are routinely overruled on appeal by the New York State Review Officer (SRO). HYPOTHETICAL SHOULD THE DISTRICT LITIGATE OR SETTLE: THAT IS THE QUESTION! 5
SETTLEMENT FACTORS • Frequency • Nature and Length of Process • Can We Win? • Cost • Settlement Terms • Setting Precedent • The Nature of the Dispute FREQUENCY Top 6 US States/Jurisdictions for due Process Complaints Per Year* Puerto Rico California District of Columbia Pennsylvania New York New Jersey 2015 ‐ 16 : NY = 5,305 out of 17,325 National Due Process Complaints Filed. Approx. 31% *Per capita filings between 2006 ‐ 2011 as per Trends in Impartial Hearings Under the IDEA: A Follow ‐ Up Analysis, Perry A. Zirkel, 303 Ed. Law Rep. 1, 7 (2014) 6
FREQUENCY FREQUENCY Due Process Complaints 2013 ‐ 2016 (per capita values based on # events per 10K students) Taken from IDEA Dispute Resolution Summary Data for NY 2004 ‐ 2005 to 2015 ‐ 2016, CADRE 2013 ‐ 13 ‐ 14 2014 ‐ 2015 14 ‐ 15 2015 ‐ 2016 15 ‐ 16 2014 Events per Events per Events per 10K* 10K* 10K* Due Process 6,417 141.0 5,170 105.7 5,305 106.2 Complaints Filed Resolution 272 6.0 231 4.7 161 3.2 Meeting Agreements Fully Adjudicated 813 17.9 459 9.4 453 9.1 Hearings Due Process 1,726 37.9 1219 24.9 1747 35 Complaints Pending Due Process 3,878 85.2 3,492 71.4 3,105 62.2 Complaints Withdrawn, Dismissed or Resolved Without a Hearing 7
FREQUENCY General Trends: Most IDEA special education disputes in NY are due process complaints. On average, the total # DPC per year = approximately 1% of the special education population On average, 62% of DPC were withdrawn, dismissed, or settled without a hearing FREQUENCY District Trends Frequency and Nature of Activity District Measures – e.g., training, relationships Compound Impact: fiscal and human costs 8
FREQUENCY Hypothetical 3 rd ongoing impartial hearing Already had one settlement What will other parents do? NATURE AND LENGTH OF PROCESS • It is helpful to understand how the process works and how long it takes. • Who filed the complaint? • Jurisdiction and/or Statute of Limitations (can all or a part be dismissed?) 9
NATURE AND LENGTH OF PROCESS • IHO Rotational List • Responses • Resolution Session in 15 Days • Mediation • Pre ‐ Hearing Conference • IHO Decision Deadline NATURE AND LENGTH OF PROCESS • NY’s Two ‐ Tiered System • Deadlines for SRO • Going to Court • Understanding Pendency and its Costs: the “then current placement” 10
NATURE AND LENGTH OF PROCESS • The Human Cost • 2013 National Superintendent’s Association Survey Regarding the Effects of Due Process Hearings (The following tables are drawn from Rethinking Special Education Due Process, compiled by the Due Process Sub ‐ Committee of SELPA Administrators of California (July 2014)) NATURE AND LENGTH OF PROCESS Please choose your level of agreement with the following statement: the threat of IDEA due process requires teachers, related service personnel and administrators in my district to spend time and resources compiling paperwork that would be better allocated to providing high quality services and programs for students with disabilities. Response Superintendent Count Percent Strongly Agree 141 68.78% Agree 50 24.39% Neither Agree or 11 5.37% Disagree Disagree 2 .97% Strongly Disagree 1 .49% 11
NATURE AND LENGTH OF PROCESS My district acquiesces to parent requests for students (regarding services, accommodations, placements, etc.) that we find to be unreasonable and/or inconsistent with IDEA requirements to avoid a due process complaint, hearing or litigation. Response Superintendent Percent Count Strongly Agree 94 46.08% Agree 13 6.37% Neither Agree or 50 24.51% Disagree Disagree 38 18.63% Strongly Disagree 9 4.41% NATURE AND LENGTH OF PROCESS How would you characterize the degree of stress experienced by special education teachers, related service professionals and special education administrators when they are engaged in a due process hearing or subsequent litigation? Response Superintendent Percent Count Very High 162 81% High 28 14% Moderate 8 4% Low 1 .5% Very Low 0 0% Unchanged 1 .5% 12
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