Washington Lawyer - September/October 2024 - 30

FEATURE
and what needs the
child is perceived to
have.
The parent has various
procedural protections
at every
step of the process,
including, but not
limited to, the right
to notice, the opportunity
to have input
into the process, and
the right to appeal.
WILLIAM B. JAFFE
Law Office of William B. Jaffe, PLLC
The IEP is the essential
document that
will determine, inter
alia, the type and
scope of services to
be provided to the
student. At a minimum,
it must include
the student's present
level of academic performance as well as statements of measurable
goals, special education needs, and related services. In addition, the IEP
must explain how progress will be reported and detail the least restrictive
environment in which it is possible for the student to receive those
services.
Special education and related services must be provided in the least restrictive
environment for that student. In other words, the goal is for students
to participate as much as possible in the general education environment,
with support and modifications. It bears mentioning again that
a school must never develop the IEP based on the services it happens to
have available. Such shoehorning is not allowed. Rather, the team must
first decide what services are required, and then find an appropriate location
of services.
If a parent is not satisfied with the resulting IEP, the parent and the team
may decide to keep talking or schedule additional meetings to consider
additional evidence, as an IEP may be amended at any time. A parent
may also elect to file for a due process hearing at the D.C. Office of the
State Superintendent of Education (OSSE).
DUE PROCESS HEARINGS
OSSE hearings are administrative in nature, so the rules of evidence do
not formally apply. In the District, OSSE will assign the hearing to one of
several independent hearing officers. Prior to a hearing, the parent and
school will attend a conference that will result in a prehearing order.
Careful review of this prehearing order is essential as it will govern the
proceedings that follow.
Within 15 calendar days after receiving the due process complaint, the
school and the parent are also required to attend a resolution meeting
at which the parties may attempt to resolve their differences. A parent
can request mediation, either in addition to or in place of a due process
hearing.
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* SEPTEMBER/OCTOBER 2024
At the hearing itself, each side will make opening statements, present
witnesses and evidence, and have the opportunity to cross-examine the
other side's witnesses and object to evidence. After closing arguments,
the case will be under the hearing officer's consideration until they issue
a written decision. While the formal rules of evidence do not apply, hearing
officers will often ask counsel to rephrase or simplify confusing questions
to assist in the development of a clear record. Always remember
that, as in any type of litigation, you are creating a record for appeal.
Thus, any claim not preserved may be waived.
Prior to the hearing, a parent can request " stay put " relief, which prevents
the school from unilaterally changing any aspect of the student's placement
- by making it more or less restrictive, for instance - until the independent
hearing officer makes a decision.
As with all litigation, one must be cognizant of the applicable burdens
of proof, statute of limitations, opportunities to expedite a hearing, and
other rules specific to the functioning of a due process hearing. OSSE
provides a description of some of these rules on its website. Others may
be found by researching IDEA and its regulations.
Hearings can turn on the direct- and cross-examination of experts. Thus,
it is important to work with an expert who not only has expertise in their
area but also can convey that expertise simply and clearly to the hearing
officer.
If the hearing decision is not satisfactory, a parent may appeal to either
state or federal district court, of course within strict timelines. Attorney's
fees are available to a parent who has prevailed at a hearing or has settled.
EFFECTIVE
ADVOCACY
Obviously, effective advocacy in this area, as in all areas of law, matters.
Parents need an attorney who is well-versed in every aspect of the process,
from initial identification of the student as someone in need of an
assessment through a hearing decision and possibly an appeal to federal
district court.
Parents are well served by attorneys who bring them into the process,
keep them informed of their rights, and help them obtain needed services
for their child. Finally, parents need to know how to find effective counsel
and need to be able to afford it as well.
Every child should have the right to an effective education that prepares
them for life's challenges. While the process of obtaining an IEP, revising
it, and then monitoring a student's progress may seem daunting, the process
is manageable if these objectives are broken down into steps and
the parent stays in touch with the advocate.
Moreover, the potential of an improved educational outcome may be
life-altering for a student who has never known educational success previously.
There is every reason to make the effort to ensure that each child
receives the education that is their right under the law. After all, what is
more important than our children's future?
William B. Jaffe is the founding principal of the Law Office of William B. Jaffe,
PLLC, a civil rights firm that specializes in educational advocacy and litigation.
This article is for informational purposes only and does not purport to provide
legal advice. The content is intended to assist the reader in spotting issues and
making referrals to special education attorneys if appropriate.
Jati Lindsay
Washington Lawyer - September/October 2024

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