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They disagree. They may disagree about whether the child is eligible for special education services. They may disagree about where the child should be placed. They may disagree about goals and objectives. They may disagree about the need for evaluation. In each case, the statute provides for three basic dispute resolution devices. The default is the due process hearing. Unless both the school district and the parents can agree to use another mechanism, the hearing is the dispute resolution mechanism that will be employed.<br /> <br /> Two caveats need to be placed here. First, this discussion concerns the dispute resolution procedure in Connecticut today. Other states have somewhat different mechanisms, within the scope of the federal statute. Moreover, in other states, hearing officers tend to focus on different things than they do in Connecticut. <br /> <br /> Second, this is a discussion of the current law. The Individuals with Disabilities Education Improvement Act of 2004, P.L. 108-446, signed on December 3, 2004, makes certain changes in the dispute resolution system. Those changes are highlighted in a separate section.</span><br /> <br /> <span class="maintext"><strong class="maintextItalic">Filing Hearing Requests</strong><br /> <br /> A hearing request may be filed by a parent, a child over 18, or by a district. The vast majority (90%) are filed by parents to contest a school recommendation or denial of eligibility. The request has to contain certain minimal information. The request is filed with Tom Badway at the State Department of Education. Mr. Badway then assigns the case to one of ten hearing officers. The hearing officers are appointed by the State but are independent. In Connecticut, but not in other states, they are all lawyers. Hearing officers are paid $400 a day for hearings and another $400 for a written decision. For most lawyers, these fees are wildly below market rates. So some hearing officers do it so they can have a flexible schedule. Some do it as a public service. The hearing officers serve under two-year contracts which are routinely renewed. <br /> <br /> A request for hearing has to be filed within two years of the time the Board “proposed or refused to initiate or change the identification, evaluation or educational placement of, or the provision of a free appropriate public education [FAPE] to the child.” Nevertheless, evidence of things that happened before that two year period can, and routinely is, introduced. So, a parent can seek relief for the district’s failure to provide FAPE for the past two years but can introduce into evidence the student’s entire history with the district.<br /> <br /> Connecticut used to require that no issue could be raised in hearing unless disagreement was reached as to the issue at a PPT meeting. The U.S. Department of Education thought that this requirement violated the federal IDEA and wrote a letter to the state saying that this prerequisite could not be enforced. Connecticut complied and changed the statute. Then, a federal district judge ruled that the feds were wrong. <u>Lillbask v. Sergi</u>, 193 F.Supp. 2d 503 (D.Ct 2002). Subsequently, the Second Circuit reversed and said that, now that Connecticut has changed the law, the issue is moot. 2005 WL 237199 (2d Cir. 2005). <br /> <br /> <strong class="maintextItalic">Mediation/Resolution</strong><br /> <br /> Under IDEA 2004, within fifteen days after the filing of a request for due process, the parties are supposed to sit down for a resolution session. The law is not clear on what those sessions are supposed to look like. Some districts hold another PPT meeting. Other districts arrange a face to face meeting between the parents and the special education director, with or without lawyers. In most cases, the parties schedule a mediation through the State Department of Education in lieu of the resolution session. <br /> <br /> The parties can agree to mediation. Mediation is a process in which someone employed by the State Department of Education, like Tom Badway or Terri DeFrancis, comes to the district. The parents are in one room, the district staff in another. The mediator goes to the parents first, if they requested the hearing, and tries to understand what it is they want. Then, the mediator goes to the school staff and talks about the parent’s concerns and how the impasse might be resolved. More often than not, i.e. 72% of the time, an agreement is reached, a settlement agreement is signed and the parties shake hands upon leaving. Sometimes, no agreement is reached and the case goes into a due process hearing.<br /> <br /> Nothing that is said at the mediation can be used in a subsequent due process hearing. This is consistent with the normal rule of law that settlement discussions are not admissible. Of course, the agreement itself can be admitted for purposes of enforcement.<br /> <br /> Mediation occurs in many other contexts other than special education. The State Department of Education mediators are not professional mediators, although they have some training and considerable experience. They do not lean heavily on the parties, as some judicial mediators do. One problem is that parents and school officials take statements of understanding and sympathy as statements that they are right. This approach may help settlement in some cases, but it can undermine settlement in others. <br /> <br /> Mediation is most useful when (1) the parties are really not communicating; (2) the school district is eager to resolve the case without the need for a full hearing; or (3) one side or the other find it hard to understand the shortcomings of their case. In many cases, however, if both the parents and the Board are represented, the lawyers can work out an acceptable settlement as efficiently through a phone call than by following the mediation process.<br /> <br /> Of the 406 cases filed in 2003, 160 went to mediation. Of those 160, 117 resulted in an agreement on the day of mediation. Of the 405 cases filed in 2004, 158 went to mediation, of which 108 resulted in an agreement on the day of mediation. <br /> <br /> <strong class="maintextItalic">Advisory Opinions</strong><br /> <br /> Connecticut also has a rather infrequently used advisory opinion mechanism. By infrequently, I mean that, in 2003, of the 406 cases filed, 19 went through the advisory opinion route, of which only 2 went on to a due process hearing. In 2004, of the 405 cases filed, 12 went to advisory opinion, with only 2 going on to a due process hearing. Under the advisory opinion mechanism, either party may request an advisory opinion prior to the start of a due process hearing. The other party has to agree to participate. The hearing is put off for thirty days. The state assigns a hearing officer, who cannot also be the hearing officer if the hearing goes forward. <br /> <br /> The parties then exchange documents and can each call up to two witnesses. The proceeding is not recorded. Witnesses do not testify under oath. Each party has 45 minutes to present its case and 15 to question opposing witnesses or for rebuttal. The hearing officer renders an opinion within 30 minutes of the close of presentations. The hearing officer can then work with the parties to facilitate settlement. The advisory opinion can be accepted or rejected by the parties. If rejected, the due process hearing commences and neither the advisory opinion nor anything said during the advisory opinion proceeding may be introduced into evidence.<br /> <br /> In theory, this is a useful mechanism to get a quick decision about a disputed issue of law. The problem is that, in special education disputes, there is rarely a question of straight law. Rather, disputes usually arise over an interwoven mix of law and fact. Since the disputes revolve around an individual child, the facts often take considerable time to set out. The tight time limits of the advisory opinion procedure may make that impossible. Also, it is frequently the case that the parents or the board or both want to be heard on the history of the dispute. Sometimes, being listened to is as important as the final decision. The short time limits of the advisory opinion mechanism do not allow for this.<br /> <br /> <strong class="maintextItalic">Due Process Hearings</strong><br /> <br /> <strong>1. Statistics</strong><br /> Between 2001 and December 30, 2005, 1,916 cases were filed and given numbers by the State Department of Education. Of these 1,453 were resolved and the hearing officer never wrote any decision. Some were resolved by mediation; others were resolved by negotiation between the parties. Decisions were written in 463 cases, of which 143 were decided on the merits. The fact that there is a written decision means that the hearing officer either decided the case on the merits or dismissed it, usually after the presentation of testimony. By way of example, I filed nearly 100 requests for due process, on behalf of 80 or so clients, during that four-year time period. Written decisions appear on the SDE web-site in only 22 of those cases. The other 75 or 80 were all resolved in a way that satisfied my client.<br /> <br /> The following chart provides some details on the cases that are on the SDE web-site:</span></p> <table border="0" cellspacing="0" cellpadding="0" width="616"> <tr> <td width="247" nowrap="nowrap" valign="bottom"><p> </p></td> <td width="49" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">2001 </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">2002 </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">2003 </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">2004 </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">2005 </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">Total </p></td> </tr> <tr> <td width="247" nowrap="nowrap" valign="bottom"><p> </p></td> <td width="49" nowrap="nowrap" valign="bottom"><p align="center"> </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center"> </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center"> </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center"> </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center"> </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center"> </p></td> </tr> <tr> <td width="247" nowrap="nowrap" valign="bottom"><p class="maintext">Numbered Cases Filed </p></td> <td width="49" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">393 </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">361 </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">406 </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">405 </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">351 </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">1916 </p></td> </tr> <tr> <td width="247" nowrap="nowrap" valign="bottom"><p class="maintext">Written Decisions </p></td> <td width="49" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">67 </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">68 </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">101 </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">154 </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">73 </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">463 </p></td> </tr> <tr> <td width="247" nowrap="nowrap" valign="bottom"><p class="maintext">% of Filed Cases with Written Decisions </p></td> <td width="49" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">17.05% </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">18.84% </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">24.88% </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">38.02% </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">20.80% </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">24.16% </p></td> </tr> <tr> <td width="247" nowrap="nowrap" valign="bottom"><p class="maintext">Written Decisions of Dismissal </p></td> <td width="49" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">38 </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">33 </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">64 </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">124 </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">61 </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">320 </p></td> </tr> <tr> <td width="247" nowrap="nowrap" valign="bottom"><p class="maintext">% of Written Decisions of Dismissal </p></td> <td width="49" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">56.72% </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">48.53% </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">63.37% </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">80.52% </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">83.56% </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">69.11% </p></td> </tr> <tr> <td width="247" nowrap="nowrap" valign="bottom"><p> </p></td> <td width="49" nowrap="nowrap" valign="bottom"><p align="center"> </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center"> </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center"> </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center"> </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center"> </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center"> </p></td> </tr> <tr> <td width="247" nowrap="nowrap" valign="bottom"><p class="maintext">Decisions on the Merits </p></td> <td width="49" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">29 </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">35 </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">37 </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">30 </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">12 </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">143 </p></td> </tr> <tr> <td width="247" nowrap="nowrap" valign="bottom"><p class="maintext">% Decisions on Merits </p></td> <td width="49" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">7.38% </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">9.70% </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">9.11% </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">7.41% </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">3.42% </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">7.46% </p></td> </tr> <tr> <td width="247" nowrap="nowrap" valign="bottom"><p> </p></td> <td width="49" nowrap="nowrap" valign="bottom"><p align="center"> </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center"> </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center"> </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center"> </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center"> </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center"> </p></td> </tr> <tr> <td width="247" nowrap="nowrap" valign="bottom"><p class="maintext">Pro-Board Decisions </p></td> <td width="49" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">16 </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">20 </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">23 </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">14 </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">7 </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">80 </p></td> </tr> <tr> <td width="247" nowrap="nowrap" valign="bottom"><p class="maintext">Mixed Decisions </p></td> <td width="49" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">2 </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">5 </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">3 </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">6 </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">2 </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">18 </p></td> </tr> <tr> <td width="247" nowrap="nowrap" valign="bottom"><p class="maintext">Pro-Parent Decisions </p></td> <td width="49" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">11 </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">10 </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">11 </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">10 </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">3 </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">45 </p></td> </tr> <tr> <td width="247" nowrap="nowrap" valign="bottom"><p class="maintext">Board Success Rate </p></td> <td width="49" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">58.62% </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">64.29% </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">66.22% </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">56.67% </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">66.67% </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">62.24% </p></td> </tr> <tr> <td width="247" nowrap="nowrap" valign="bottom"><p> </p></td> <td width="49" nowrap="nowrap" valign="bottom"><p align="center"> </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center"> </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center"> </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center"> </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center"> </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center"> </p></td> </tr> <tr> <td width="247" nowrap="nowrap" valign="bottom"><p class="maintext">Average Time from Filing to Decision </p></td> <td width="49" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">140 </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">156 </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">135 </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">142 </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">113 </p></td> <td width="64" nowrap="nowrap" valign="bottom"><p align="center" class="maintext">141 </p></td> </tr> </table> <p class="maintext"> Of those decided on the merits, the school board won 80, the parents won 45, and 18 had mixed results. The other 320 with written decisions were dismissed, either because the parties settled or were negotiating a settlement, at the request of a party, for mediation, or because of failure to prosecute. <br /> <br /> In 154 of these 463 cases, the parents represented themselves without a lawyer. Of the 80 cases the Boards won on the merits, 43 of them were ones in which the parents represented themselves. In the 63 cases with mixed results or in which the parents won, only seven were cases in which the parents represented themselves. Put otherwise, parents representing themselves won 13% of their cases that went to final decision, while parents represented by attorneys won 51% of the cases that went to final decision. Forty-six cases were initiated by school boards. Parents initiated 417 cases.<br /> <br /> <strong class="maintextItalic">2. Due Process Procedures</strong><br /> <br /> Typically, one of the parties files a request for due process with Tom Badway of the due process unit of the Bureau of Special Education, State Department of Education. In other cases, the parents demand due process at the PPT meeting and the district contacts the state. Mr. Badway contacts the ten hearing officers, generally on a rotating basis, to see who is available to take the hearing. Ordinarily, within 48 hours of the request coming in, Mr. Badway sends a letter to both sides appointing the hearing officer. The hearing officer then contacts the parties, or their counsel, to set up a prehearing conference, which is generally held within the next few days.<br /> <br /> The purpose of the prehearing conference is to “simplify or clarify the issues in dispute.” Also, “at the prehearing conference the hearing officer may establish dates for the completion of each party’s evidence as well as review the possibility of settlement of the case.” R.C.S.A. §10-76h-7(b). The hearing officer may not, however, participate in substantive settlement discussions. “The hearing officer shall schedule hearing dates, organize the submission of exhibits, and identify witnesses.” The prehearing conference has to occur at least ten days prior to the beginning of the hearings and parties have to produce evidence and witness lists at least five days prior to the hearing.<br /> <br /> Hearings are held at a convenient place which is, nearly always, the offices of the local school board. <br /> <br /> The final decision of the hearing is supposed to be completed within 45 days after the receipt of the request, except that the hearing officer can grant limited extensions. The 45-day period now starts to run only after the completion of the 30-day period for resolution. In virtually every contested case, it is impossible to schedule sufficient hearing dates within that 45-day period. Of the 143 cases decided on the merits between 2001 and 2005, the average length of time from filing to decision was 140 days. Only 12 cases were concluded within the 45-day limit, of which two were expedited hearings for discipline. Where the parents were unrepresented, the average length was 94 days. Where the parents were represented, the average length was 164 days.<br /> <br /> Expedited hearings are provided for changes in placement as a result of discipline. In 1997 Congress added a whole set of procedures dealing with the discipline of special education children. After enormous sound and fury, some modest changes in these procedures were made in 2004. Discipline is worthy of a separate section which follows.<br /> <br /> The hearing itself is conducted in private, unless the parents ask that it be opened to the public. Only one hearing was open to the public in the last two years. Note, if the hearing is to be open to one outsider, it is open to all, including the press. Around a conference table, usually, sit the hearing officer, the Board’s special education director, the Board’s lawyer, one or both parents, their lawyer, and a court reporter who tape records the hearing for a transcript. The transcript is free to the parents. At the end of the table sits the witness. Exhibits are marked, with the Board exhibits being B-1 through, say B-200, and the parent exhibits being P-1 through maybe P-50. Boards frequently put in as exhibits the student’s entire educational record. The parents supplement the exhibits with documents the board may have overlooked.<br /> <br /> The issue of which party bears the burden of persuasion in this case is disputed. On the one hand, the Supreme Court, in <em>Schaeffer v. Weast,</em> 126 S. Ct. 528 (2005), clearly stated that, in IDEA cases, the party initiating the hearing bears the burden of persuasion. On the other hand, Connecticut Regulations state <br /> <br /> <strong><em>In all cases, however, the public agency has the burden of proving the appropriateness of the child's program or placement, or of the program or placement proposed by the public agency.</em></strong></p> <p class="maintext">Reg. Conn. State Agen. Sec. 10-76h-14(a). And, the <em>Schaeffer</em> court explicitly stated that it was not deciding the issue of whether a State could, by regulation, assign the burden of persuasion to demonstrate the appropriateness of an IEP to the district. 128 S.Ct. at 537. In that the Supreme Court did not rule on this issue, the Connecticut regulation could be presumed to remain in effect and valid. That is the position announced by Attorney General Blumenthal.<br /> <br /> Does it matter? The burden of proof means, in greatly simplified terms, that if the evidence on the question is equal, the party without the burden wins. Justice O’Connor noted in <em>Schaeffer</em> “In truth, however, very few cases will be in evidentiary equipoise.” 128 S.Ct. at 535. <br /> <br /> During the course of the due process hearing and any appeal, the student’s placement is in a stay put position. This means that the last agreed upon IEP continues in effect. If the parent wins an out-of-district placement at the hearing, that placement becomes the stay put placement during any appeal. So, for example, Johnny currently attends his neighborhood public school, the Yellow School, in the regular classroom. The Board proposes that Johnny be moved to a self-contained classroom at the Red School, a public school across town. The parents demand that Johnny be placed at the Gold School, an expensive private school in the next town. During the course of the hearing, Johnny stays at the Yellow School, unless the parties agree otherwise. If the hearing officer decides that the Gold School is right for Johnny, he starts there, even if the Board appeals. What if the appeal takes two years and the Rich School costs $75,000 a year and the Board wins the appeal? Can the Board seek to recover the $150,000 from the parents? The answer is no because the Gold School was the stay put placement.<br /> <br /> Contested hearings may go on for 10 or 12 days, not held consecutively. After that, the parties generally file post-hearing briefs. The dictionary defines “brief” as “short in time, duration, length or extent; succinct, concise, curt, abrupt.” It is wrong. A legal brief is a lengthy statement of the facts and points of law relative to the case. Post hearing briefs are rarely shorter than 30 pages and are often over 60. In a good brief, every single sentence is supported, either by a citation to the transcript, a reference to an exhibit, or a citation to a law, rule, regulation, or court decision.<br /> <br /> After review of the post-hearing briefs, and sometimes reply briefs, the hearing officer renders a final decision, which contains a procedural history, a numbered list of findings of fact, a numbered list of conclusions of law, and a final order. The final decision may be appealed to either state or federal court. Where the parents substantially prevail, they are entitled to have the school board pay their attorneys fees. If there are a number of issues and they prevail on some, but not on others, the amount of recovery will be determined by the degree of success.<br /> <br /> <strong>3. 2004 Changes</strong><br /> <br /> In the IDEA Improvement Act, Congress made a few changes in the procedural protections. Whether these changes prove significant or minor will have to await implementation. The effective date of these changes was July 1, 2005. Here are some of the most significant changes:<br /> <br /> 1. The non-complaining party, which is usually the school board, has fifteen days to challenge the sufficiency of the other side’s complaint. 20 U.S.C. §1415 (c)(2)(A).<br /> <br /> 2. If the board has not already complied with the provision to provide written prior notice of any change in program or placement, the board must send such notice within ten days of receiving the complaint. 20 U.S.C. § 1415 (c)(2)(B).<br /> <br /> 3. Whether or not such written prior notice is sent, the non-complaining party must respond to the due process complaint within 10 days. 20 U.S.C. § 1415 (c)(2)(B)(ii).<br /> <br /> 4. The due process complaint generally cannot be amended after it is filed, except with the agreement of the opposing party or by order of the hearing officer. 20 U.S.C. § 1415 (c)(2)(E).<br /> <br /> 5. States are authorized to use neutral third parties to encourage parties to pursue mediation. 20 U.S.C. § 1415 (e)(2)(B).<br /> <br /> 6. Mediation agreements are specifically made enforceable in state or federal court. 20 U.S.C. § 1415 (e)(2)(F).<br /> <br /> 7. Within fifteen days after the due process complaint is filed, the district must hold meeting to attempt to resolve the complaint. The board lawyer may not attend unless the parent lawyer attends. 20 U.S.C. § 1415 (f)(1)(B). Parties cannot be awarded attorneys’ fees for participation in these meetings. 20 U.S.C. § 1415 (i)(3)(D)(3).<br /> <br /> 8. If this resolution meeting results in an agreement, that agreement must be put in writing and is enforceable in state or federal court. 20 U.S.C. § 1415 (f)(1)(B)(iii).<br /> <br /> 9. A party may not raise in a due process hearing an issue not included in the initial complaint. 20 U.S.C. § 1415 (f)(3)(B).<br /> <br /> 10. The decision of the hearing officer should ordinarily be on substantive grounds. A procedural violation can result in a finding of a denial of a free appropriate public education only if the violation impeded the child’s right to FAPE, significantly impeded the parent’s opportunity to participate in the decision making process, or caused a deprivation of educational benefits. 20 U.S.C. § 1415 (f)(3)(E). While this is a significant change in the language of the law, it appears to be a codification of numerous court decisions. Furthermore, in Connecticut, hearing officers have generally been far more concerned about the appropriateness of the education of the child than about compliance with procedures.<br /> <br /> 11. After a due process hearing officer decision, an appeal to federal court must be taken within 90 days, unless a state has a specific rule otherwise. 20 U.S.C. § 1415 (i)(2)(B). Connecticut operates now under a 45 day time limit.<br /> <br /> 12. For the first time a local school board can collect attorney’s fees from parents or their counsel if the complaint was frivolous, unreasonable, or without foundation, 20 U.S.C. § 1415 (i)(3)(B)(i)(II), or if the complaint was presented for an improper purpose, such as harassment, unnecessary delay, or needlessly increase the cost of litigation, 20 U.S.C. § 1415 (i)(3)(B)(i)(III).<br /> <br /> 13. At its discretion, a state may permit attorney’s fees to be awarded for mediation. 20 U.S.C. § 1415 (i)(3)(D)(ii).<br /> The intent behind these changes is, for the most part, pretty obvious. School board attorneys have long complained that parents are vague in their complaints and define the purpose of a hearing once it starts. These changes attempt to end that practice. Similarly, boards have asked for the chance to fix their mistakes before going through a hearing. Parents see this as a second, or third, bite at the apple. Changes were made to let the board fix the problem before the hearing begins through the resolution meeting. </p> <p><span class="maintext"><br /> The most noted change has been the provision, for the first time, for boards to collect fees. The language used -- frivolous, unreasonable, or without foundation – is well known language to the courts. It is a very hard standard to meet. Lawyers can and do challenge existing legal precedent. They also lose. The Supreme Court has said, “We [point] out that the term ‘meritless’ is to be understood as meaning groundless or without foundation, rather than simply that the plaintiff has ultimately lost his case, and that the term ‘vexatious’ in no way implies that the plaintiff's subjective bad faith is a necessary prerequisite to a fee award against him. In sum, a district court may in its discretion award attorney's fees to a prevailing defendant ... upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.” <strong><em>Christiansburg Garment Co. v. Equal Employment Opportunity Commission</em></strong>, 434 U.S. 412, 421 (1978).</span><br /> </p></td> </tr> </table> <p> </p> </td> </tr> <tr> <td class="contnet"> </td> </tr> <tr> <td align="center" class="contnet"><p class="contnet"><strong>(860) 572-8585 | 86 Denison Avenue | Mystic, Connecticut 06355</strong></p> <p>[<a href="index.html" class="bottomnav">Home</a>] [<a href="mission_statement.html" class="bottomnav">Mission Statement</a>] [<a href="who_I_am.html" class="bottomnav">Who I Am </a>] [<a href="Cases_litigated.html" class="bottomnav">Cases Litigated</a>] [<a href="questions.html" class="bottomnav">Questions About Legal Representation</a>]<br /> [<a href="retainer.html" class="bottomnav">Sample Retainer Agreement</a>] [<span class="bottomnav"><a href="special_education.html" class="bottomnav">Useful Special Education Links </a></span>] [<span class="bottomnav"><a href="articles.html" class="bottomnav">Legal Commentary</a></span>] [<a href="contact.html" class="bottomnav">Contact</a>] [<a href="disclaimer.html" class="bottomnav">Disclaimer</a>] [<a href="sitemap.html" class="bottomnav">Sitemap</a>]<br /> Site Designed by <a href="http://www.easywebcreations.com" target="_blank" class="bottomnav">EasyWebCreations.com</a></p></td> </tr> </table> </body> </html>