November 16

Learning the Lingo: Is a Due Process or Impartial Hearing Proceeding a Law Suit?

Short answer: no. It isn’t. Some statutes, and the IDEA is one of them, set forth what the government wants to have done and establishes an agency that specializes in the issue involved. Lawyers call these departments “administrative agencies.” Administrative proceedings are not lawsuits. Lawyers call them “quasi-judicial” (in other words, kind of, sort of).

The Federal agency responsible for oversight of the IDEA is the United States Department of Education Office of Special Education and Rehabilitative Services. However, the IDEA is a grant of funds to the states and requires that states enact rules implementing the IDEA. This is done through the education departments of the respective states, whose rules are reviewed and approved by the U.S. Department of Education. State agencies are empowered to resolve disputes in “administrative proceedings.” The due process or impartial hearing proceeding is called an “administrative proceeding.”

Some states, like New York, have a two-tiered hearing system. In New York, the first hearing is before an “impartial hearing officer.” The impartial hearing officer can administer oaths and issue subpoenas requiring witnesses to appear at the hearing. Their decision is binding unless one party appeals. In New York, appeal can be taken to the State Review Officer. Beyond that, appeal can be taken to either the state or federal court. State courts and federal courts exist because of the state and federal constitutions, respectively. In state or federal court, cases are heard and decided by judges, not hearing officers and different rules and procedures apply in state and federal court that do not apply in the administrative proceeding.

November 2

Divorce and Special Education Law

Divorce and a child in need of services under the IDEA or Section 504 of the Rehabilitation Act is a bad combination. The stress and conflict are simply compounded. It is in the best interest of your children to hammer out an agreement in the divorce process assigning decision making authority for school issues. Joint legal custody is perfectly fine, but it means that you and your ex-spouse are going to have to communicate and coordinate. For example, if both parents have shared legal custody and they disagree about whether the child evaluated, the disagreeing spouse will have to initiate a hearing to challenge the other parent’s decision. That simply makes for a longer process, so it’s better for parents to resolve their conflicts before any special education issues arise.

October 25

Wrightslaw – A Rising Tide Lifts all Boats

At last week’s Wrightslaw Conference in Wilton Connecticut, Pete Wright told the attendees to join a support group relevant to their child’s challenges. Then, he suggested that attendees join one other support group dealing with a different area of disability. Why? Because the issues are more common than one would imagine. The accommodations and modifications might differ, but the legal landscape is the same whether you are dealing with a child with dyslexia, ADHD, hearing impairment or any other interfering issue (I HATE the word disability – can anyone tell that I am avoiding it?!). The objective is to learn to harness legal rights to improve outcomes – individually and collectively.

October 25

Lessons from the Master; a Wrightslaw Conference

What, I wondered, would I learn at a Wrightslaw Conference. I know the law, but I studied at the Institute for Special Education and Advocacy this summer and Peter Wright suggested that I attend one of his conferences. So, through pouring rain, I schlepped to Wilton, Connecticut for a Wrightslaw Conference hosted by The Advocacy Offices of Faith Filiault. No matter your level of knowledge, go to one of these conferences. Peter Wright shares his analytical methodology, his strategy for organizing evidence and his infectious spirit. But there is something else; Peter’s presence that fosters community. Everyone in the room is part of the same team heading in the same direction and everyone emerges inspired.

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