Facebook Goes Corporate on Our Special Education Law Group!

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One of the great features of this blog has been the externality that because of the blog, I have been forced into the modern world of social networking.  On the lefthand side of the blog are a number of ways that we try to share information and resources through the "new" technologies.  Many people take advantage of the free subscriptions and get our posts by email or in a reader {or as a blidget (=blog + widget) in their own blog or website.} 

You can also get a mobile phone-friendly version of the posts.  You can read the headlines when there are new posts through Twitter. You can also join one of the spin-off special education law groups that we have created.  The LinkedIn group now has 950 members.  Many people read our posts via LinkedIn or Facebook.

Many interesting, and sometimes very vigorous, discussions took place on the wall of the Facebook special education law group.Unfortunately, Facebook in its extremely corporate wisdom has determined that even though our group has 900+ members, the group would be "archived" because we did not have constant discussions over trivial matters.  It is difficult to believe that a group with over 900 members, a group that provides a forum for parents and school officials, and all other special education stakeholders, can share resources and debate information was not "active" enough for the Facebook overlords. I guess that sharing of information is not a moneymaker! 

I thought that Facebook was a social network, a power to the people, grass roots, in your face, rock & roll, stick it to the man, underground, mellow kind of place.  I guess I was wrong; it is all about money!
If you were one of the members of the special education law group, the "archiving" of the group means that you need to rejoin.  Please do so.  I'd hate to lose good members to Facebook's administrative efficiency campaign.  If you were not a member, I understand that new members may still join the group.  Please email me or make a comment on the blog if you have any difficulties.  We will continue to share information about special education through the new technologies with, or without, the help of Facebook!

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Special Education Law 101 - Part XVI Hearing Issues

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This is another in a  series of posts comprising an introduction to special education law.  This series is meant to be an introduction for newbies and a refresher course for more experienced readers.  Please let us know what you think about the series.

Today's post concerns some unusual procedural issues in due process hearings.  

A.   Hearing Procedures

1.    5 day Disclosure Rule
This rule provides that where a party does not disclose its evidence (generally at least an exchange of exhibits and list of witnesses) at least five business days prior to the due process hearing, such evidence may not be admitted.
34 C.F.R. § 300.512(a)(3), & (b)(1)-(2); IDEA, § 615(f)(2) (evaluations only).

 (Most hearing officers do not like the technicality nature of the 5 day rule.  Most will enforce if a continuance or other procedural maneuver will not cure it.)

2.    Sufficiency of Due Process Complaint
The reauthorized statute provides that a party receiving a due process complaint may challenge the sufficiency of the complaint within 15 days of receipt.  The due process hearing officer must make a determination on the face of the complaint (and notice) concerning sufficiency within 5 days.
IDEA, § 615 (c)(2); 34 C.F.R. § 300.508 (d). 

(Most  courts have imposed a relatively deferential standard for sufficiency.  See,  Anello v. Indian River Sch Dist 107 LRP 7179 (Del. Family Ct. 1/192007)

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Big CADRE Conference Coming This Fall

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As I have previously mentioned the 2011 Jim Gerl Special Education Law Tour will be coming to Eugene Oregon next month.  The CADRE Conference is highly anticipated.  Many of the "usual suspects" in special education dispute resolution will gather there.  I'll be presenting two sessions there.  One will involve the possible certification of and the training of IDEA hearing officers and mediators.  The other will be a professional development session that will be a hearing officer training. 

The other components of the conference will be of interest to mediators, dispute resolution coordinators, hearing officers, complaint investigators, monitors, professors, and others with an interest in dispute resolution in special education.  Here is some of the official language regarding the conference:

"Showcasing Exemplary Practices: The Fifth National Symposium on Dispute Resolution in Special Education".  This event will bring together individuals who are interested in resolving disputes in a non-adversarial manner and building collaborative relationships that will lead to better educational programs for students with disabilities.  This is the first national symposium on the topic since 2006! 
The Symposium Faculty is a highly regarded group of special education dispute resolution professionals from throughout the United States.  CADRE is delighted to announce that two of the seminal thinkers in the field, Bernie Mayer, Professor at the Werner Institute for Negotiation and Dispute Resolution at Creighton University, Michelle LeBaron, Professor of Law & Director of Dispute Resolution at the University of British Columbia, will deliver both keynote addresses and concurrent sessions.   Additionally, Alexa Posny, Assistant Secretary for Special Education and Rehabilitative Services and Melody Musgrove, Director of OSEP at the U.S. Department of Education, will deliver featured talks.

The Symposium is being held October 26-28, 2011 in Eugene, Oregon at the Valley River Inn.  You can find more information available including the full program agenda, individual concurrent sessions, Symposium Faculty, and the keynote speakers here: http://www.directionservice.org/cadre/symposium2011index.cfm

Please feel free to contact CADRE if you have any questions.   As a reminder, CADRE does not convene an annual conference. This is their first since 2006 and our last for several years.

The program agenda includes a number of sessions directed mediators, facilitators, and other dispute resolution practitioners, including:

Maximizing Mediation: An Experienced Mediator's Favorite Techniques












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New Data Tool: Cool Charts & Graphs

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The United States Department of Education has developed a redesigned toy for us.  It involves data, and we love data in special education

The new tool is called ED Data Express.  You can play with the new website here.You can find a nice article with examples of how you can use the ED Data Express at the NICHCY website.

This is a very nice resource for special education stakeholders. You can do a number of things at this website.You can choose a state and review a profile of education data for the state.  You can also use the data elements section to build your own customized charts, graphs, trend lines, etc. Or you can build a table utilizing the data for a particular state. 

More fun with data!  Let me know if you find this tool useful.  Also send copies of any graphs or tables you are proud of.  Viva la data!
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Special Education Law 101 - Part XII Burden of Persuasion

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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 Court 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. 

Concerning the IDEA due process hearing process, the Court 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.

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Special Education Law 101 - Part XII Expenses and Attorney's Fees

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This is another in our ongoing series on the basics of special education law.  These posts are meant to be an imtroduction for those new to the field and a refresher for the seasoned veterans.

Attorney's Fees

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.  Because Congress 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.

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