Due Process: No-Win System Due process hearings are on the rise in the current legal and regulatory climate. During a session at Schools 2004 geared to educators on “How to Avoid Due Process-and What To Do If You Can’t,” two speech-language pathologists presented the perspective of a district director and a hearing officer as ... School Matters
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School Matters  |   September 01, 2004
Due Process: No-Win System
Author Notes
  • Susan Boswell, an assistant managing editor of The ASHA Leader, can be reached at sboswell@asha.org.
    Susan Boswell, an assistant managing editor of The ASHA Leader, can be reached at sboswell@asha.org.×
Article Information
Regulatory, Legislative & Advocacy / School Matters
School Matters   |   September 01, 2004
Due Process: No-Win System
The ASHA Leader, September 2004, Vol. 9, 18-20. doi:10.1044/leader.SCM1.09172004.18
The ASHA Leader, September 2004, Vol. 9, 18-20. doi:10.1044/leader.SCM1.09172004.18
Due process hearings are on the rise in the current legal and regulatory climate. During a session at Schools 2004 geared to educators on “How to Avoid Due Process-and What To Do If You Can’t,” two speech-language pathologists presented the perspective of a district director and a hearing officer as they outlined the dispute resolution process, offered strategies to avoid due process, and provided tips on testifying.
“In my perspective, the days are gone when we could work things out without lawyers,” said Barbara Moore-Brown, director of special and alternative education in the El Rancho Unified School District in Pico Rivera, CA.
With the passage of Public Law 92-142 in 1975, the nature-and number-of due process cases changed. This law required that children with disabilities be educated in public schools, put procedural safeguards into place to ensure that parents would be included in decisions concerning their child-and included a provision for attorneys’ fees.
Since then, the number of due process hearing requests in California has skyrocketed from 500 in 1999 to 2,798 in 2002. In 2001–2002 alone, there was a 31% increase in the number of hearings and a 104% increase in the number of hearing days, with a 62% increase in the number of decisions rendered, Moore-Brown noted.
The reauthorization of IDEA and several other landmark judicial decisions yielded fundamental changes in due process cases. In the United States, education is considered a constitutional property right, and due process is applicable when this right is denied or taken away.
Within special education, parents and students have rights, while Local Educational Agencies (LEAs) and school districts have obligations. LEAs have a duty to provide a Free and Appropriate Public Education (FAPE) that is tailored to the student’s unique needs through an Individualized Education Program (IEP) that confers educational benefit in the least restrictive environment.
“We develop an IEP prospectively, and we have to be sure that what we put in the IEP can be implemented,” Moore-Brown said. “Clinicians must ensure that the goals on the IEP can reasonably be met.”
Providers should ensure that they are in compliance and everything is procedurally correct during the assessment, IEP development, and implementation, Moore-Brown noted. “A clean procedural slate helps in due process,” she said. “One change we’ve seen in many cases of procedural violation is that the hearing officer treats it as a denial of FAPE.”
In everyday practice, treat every case as though it may one day be scrutinized under the microscope of due process. Clinicians should employ research-based intervention strategies, use a variety of service delivery models, and collaborate with team members. “Always question yourself on why you are doing what you are doing with the student and whether you could explain that to a parent or hearing officer,” Moore-Brown said.
Clinicians should be meticulous in their documentation, and create a file that lists the date and nature of all contacts with parents. This file should be kept according to district requirements or until the child is out of the educational system, said Kreb, who commended SLPs on their documentation.
“Be very objective in what you write in all of your documentation,” Moore-Brown said. “All of it can be admitted into evidence-right down to a casual remark on a sticky note.”
Providers should also create a professional portfolio that documents all continuing education so that they can attest to their knowledge and skills, Moore-Brown said.
But even more important than compliance is the relationship between parents and clinicians. Research by Michael Opuda on parents who initiated due process hearings showed the need for improved relationships between parents and educators and the need for greater collaboration and honesty.
But sometimes parent-educator relationships are broken or never developed, and red flags warning of an impending request for due process include parents’ refusal to sign the IEP, requests for copies of records, disgruntlement, challenges, frequent complaints, or stories that things were better at the last school, Kreb noted.
Currently, disagreements typically occur over least restrictive environment, evidence-based practice, individual versus group treatment, specific programs for intervention, and specific providers. It is anticipated that the application of No Child Left Behind’s Adequate Yearly Progress requirements may hold a future of litigation due to high demands, conflicting requirements, and focus on the disability subgroup.
If conciliation-an informal meeting to attempt to resolve the issue-is unsuccessful, formal dispute resolution begins with a request for due process, which launches a procedural timeline. Depending on the state’s system, the first step typically is mediation, in which an independent mediator assists in negotiations during which there may or may not be lawyers present. Either side may waive mediation and request a due process hearing.
“In some states, lawyers are savvy and request a due process hearing because their fees will be paid,” Kreb noted.
A due process hearing is designed to be a forum where parents and providers present their opinions. Usually, both sides are represented by attorneys, and the hearing officer acts as a fact finder and renders a legal decision. States are taking steps to decrease the time spent on due process and improve the qualifications of hearing officers. “In some states hearing officers are not required to be lawyers or hold law degrees,” Kreb noted. “They allow things to go on during a hearing that would never be allowed in a courtroom.”
If you must testify, prepare by reviewing all treatment logs and previous IEPs for the child as well as what you did during treatment and the rationale. Providers should also be prepared to discuss their training, and to identify areas of dispute for the district attorney so that their side can be presented.
“In due process, there are no winners-everyone loses,” Kreb emphasized. “You must implement the decision. Relationships are in turmoil and it takes a long time to rebuild them.”
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September 2004
Volume 9, Issue 17