Here are some
important developments or events that you
should be aware of in protecting your child's
Clock is Ticking
the mass of laws, rules and regulations of Special
Education beats the ticking of a clock, set to
cost you money or preclude you from getting the
services and placement for your child. It seems
dramatic because it is.
one day past 90 days and you cannot bring a
lawsuit for even the most heinous of negligence or
mistreatment of your child.
one day past 30 days and you cannot appeal the
most obviously damaging ruling to the Commissioner
of the State Department of Education.
to give the full 10 day notice before removing
your child to a private placement and you may find
yourself paying the bill.
point is that unless you are really up on all the
laws, rules and regulations of Special Education
and the time limits involved, you need to consult
Burden Is It?
US Supreme Court case Schaffer v.
Weast (126 SCt 528 ) the Court said
that the party that is seeking the impartial
hearing has the burden of persuasion. That's an
Important rule because whomever has the burden has
an uphill battle. They have to affirmatively prove
the case. If you are the other party you do not
have to even present a defense, all you have to do
is say that the moving party did not reach their
burden of persuasion.
to this ruling the general rule in New York state
was that the School District had the burden to
defend all its actions and decisions. This
decision changed that and reversed general rule.
As written by Phyllis Saxe "Parents may become too
intimidated to advance their due process rights
without engaging counsel and of course, engaging
counsel may result in an increase of costs - a
result that the recent IDEA amendments was
designed to curtail. Although attorney's fees are
recoverable if the parents are successful in an
IDEA matter, this change in the burden of
persuasion will force many parents to either find
the money to pay for attorney's fees or to forgo
challenging the IEP."
The New York State
Legislature Amended §4404 of the Education Law,
(Laws of New York, 2007, Chapter 583), and
declared that effective Oct. 14, 2007, the school
district has the burden of proof, including the
burden of persuasion, in any impartial
hearing. The New York
Assembly wrote: "This bill seeks to maintain
New York's long-standing policy that the burden of
proof should be on school districts in a dispute
on a student's special education placement and
ensure that all students of New York State are
afforded the quality education that they need and
School Districts Can't Require
very important tuition reimbursement cases went
before the U.S. Supreme Court with the same
question: Can a School District require
that parents are not entitled to tuition
reimbursement unless their child was previously
enrolled in the public school's special education
program. In Tom F. [Tom F. claimed New York
City’s program did not provide appropriate
instruction for his disabled child] and the
Frank G. cases the U.S. Supreme Court allowed the
lower Court ruling that the School District could
not make such a requirement stand.
need services not provided by their school
district are not required to send them to the
local school, ostensibly to fail, before placing
them in an appropriate setting.
Looking to Reimburse for Experts
November 14, 2007, Congressman Chris Van Hollen of
Maryland and Congressman Pete Sessions of Texas
introduced the IDEA Fairness Restoration Act, H.R.
4188. This bipartisan bill would allow
prevailing parents to recoup their expert costs in
litigation under the Individuals with Disabilities
Education Act. The bill would restore
Congress' original intent in granting parents the
ability to recover their attorneys' fees and costs
when they prevail in IDEA
NYS Special Education Impartial Hearing Outcomes
When parents and school districts cannot resolve issues relating to providing a Free Appropriate Public
Education (FAPE) to a student using the standard administrative procedures, one of the final recourses is
to initiate a complaint for a Due Process Impartial Hearing.
We have prepared a report on our analysis of these complaints. It can be found here