Special Education Law: Explaining how the Appeal Process works for Due Process Complaints under IDEA скачать в хорошем качестве

Special Education Law: Explaining how the Appeal Process works for Due Process Complaints under IDEA

The Question Asked: "State is VA. District is appealing a parent favored win because the HO ordered future placement. Do you know of case law where hearing officers ruled for prospective placements? Tia!" As I explain in the video response, it is specifically written into the IDEA that when Due Process Hearing decisions are appealed into the federal court the federal judge is to give heavy deference to determination made by the Hearing Officer. The reason is that the Hearing Officer heard the testimony, watched the witnesses to determine reliability, and considered the presented evidence. In short, they were there and the federal judge wasn't. Now, Due Process Hearing decisions are appealed into federal court all the time and, depending on a myriad of factors, the federal courts have overturned the decisions made by Hearing Officers. Some of those factors could be an inaccurate interpretation of the FAPE standard, bias, error or other areas contained in the hearing record that stood out to the federal judge as substantive. But, the IDEA does demand that the deference be given first and foremost. So, the best strategy if a school appeals your win is to defend the reasoning of the Hearing Officer and back that decision up with additional case law, OSEP decisions and the IDEA itself. An appeal on a Due Process Hearing decision is done on the record and there is no new trial, no additional evidence or testimony given unless there is some novel issue at law that is reserved for a federal judge to consider and determine. This is why DP hearing appeals are called "De Novo" reviews.... if there is a novel issue at law that is reserved for a federal judge then this portion would be a new trial while any appeal on the DP hearing decision would be the appeal on the record only. Also, only a federal judge can award the parent's attorney fees be reimbursed or paid if you are "prevailing party" in your due process hearing decision. As an aside, your reasonable attorney fees can and should be negotiated as part of a mediation or resolution agreement if the School District doesn't want to go to a hearing. They may tell you that they don't have to pay attorney fees, they may even try and convince you that only a federal judge can award those (which is true) but.... a mediation agreement or resolution agreement where you are successful in resolving most or all of the issues would be considered a "change in relationship" justifying the federal fee-shifting standard for the recovery/payment of your reasonable attorney's fees. It is a common school strategy to bully parents into dropping their demand for reimbursement/payment of their reasonable attorney fees during mediation or settlement negotiations by agreeing to resolve the parent's issues but refusing to pay fees (they will say that the school will pay their fees and the parents must pay their own). If the parents have an attorney already on retainer then, in far too many sad instances, the parent attorney will pressure the parent to absorb the financial loss in exchange for the corrective action in the agreement. The parent attorney already has their money so where's the incentive or risk in pressing for the parent's reimbursement/payment of fees that the IDEA entitles them to.... by agreeing to corrective action, LRE changes that should never have been made or any other wrong that the school did that needed to be made right.... there was no "pain" or discomfort experienced by the school.... real change comes through real "pain" and discomfort of having to reimburse/pay parent attorney fees for not doing what they're supposed to.... attorney fees must come from local funds and not SPED funding. Unfortunately, for a lot of schools, that discomfort and accountability of having to reimburse/pay parent attorney fees is what results in real change.... not all schools but a lot of them.