In the current climate of budgets defeated and reductions in force of school staff, the answer is sooner than later. As one may guess, those of us who advocate for students with disabilities are very much “control freaks” by nature, so for some, the answer may be the same in any economic climate. Unfortunately, knowing your rights and knowing when something you do or don’t do may compromise your child’s right to a free, appropriate public education (“FAPE”) pursuant to the IDEIA 2004, is more complicated than it should be. Many parents, including attorneys, have admitted that they read Parental Rights in Special Education (“PRISE”), and were still in the dark about their rights.
The primary right a parent has, especially when there is a dispute which would result in an unwelcome change in the relationship between the parties, is called “stay-put.” Stay-put is the mandatory injunction which prevents a change in program and/or placement until there is a resolution through due process. There have been too many tearful interviews when parents have stated in earnest that they “objected” to the proposed IEP, so they didn’t understand why they lost the out-of-district placement, one-to-one aide, or other vital element of FAPE. The answer is simple but frequently overlooked. The law states that if you object to a proposed IEP, you MUST file for mediation or due process within 15 days of receipt of said IEP, or it becomes the IEP of record (except initial IEP’s which do not go into effect until signed.)
New Jersey is a notice pleading state, that is, the Petitioner (in education cases almost always the parent), must give the Respondent Board of Education notice of every element of the case and relief requested. The PRISE book has forms in the back for requesting mediation or due process, but in many instances the information will be deemed insufficient by the Administrative Law Judge (“ALJ”) assigned to the matter. While some ALJ’s offer the Petitioner an adjournment so counsel may be retained, cases are often dismissed for insufficient pleadings (even some attorneys have had this inexcusable experience.)
It is important to remember that the school district will always be represented by experienced trial counsel. This will be true even if you represent yourself. If you do get professional advocacy early, such as at the IEP Meeting level, the school district will be able to bring their attorney to that meeting as well. While this sounds counter-intuitive, it does tend to shine a light on your child’s case and that light illuminates solutions which were previously undiscovered. For example, there have been times when a parent was dead to rights that his child was eligible for an IEP, yet the district resisted apparently without significant justification. One good outcome for such cases has been a 504 Plan, with many features of an IEP without calling it an IEP, so each side has given in reasonably.
Another important decision is mediation only or mediation/due process? When you have stay-put, time is on your side. You must ask yourself, am I ready for due process? While the United States Supreme Court has taken away the right of a parent to be reimbursed for expert fees, even if the parent prevails in due process, the ALJ’s ask, “Who is your expert on the substantive issue?” therefore, mediation only gives you time to do important things; get that expert and have an observation of the proposed program and your child in school, and prepare a due process petition, which in great detail tells the entire story to the ALJ. If you have mediation only, before the mediation actually occurs, you file “additional information” which is really the petition with all exhibits attached and a list of your witnesses. If you don’t and you proceed to mediation, but do not settle the case, you now need the district’s permission in order to file a petition for due process. To prevent graduation for example, not only must it be due process, but Emergent Relief Due Process, as time is of the essence. Again, there is a rigorous test regarding whether a case is a true emergency.
Sounds complicated doesn’t it? Actually it is, and a busy advocate may have untold numbers of cases unfolding simultaneously. Again, the experience and professionalism will serve to keep the strategies and timelines straight for you. Anyone who is a special education law professional, can’t help but to take it personally and have some level of emotion when representing a child with a disability. But there is the small degree of detachment that permits a flow from one detail to the next that parental emotion may cloud.
Finally, know yourself! Are you short tempered or highly emotional in other settings? Have you already said things you wish you had not said at IEP or other school meetings? Again, a familiar theme to those of us who do advocacy is that we are told, “I wish I had never said . . . “ or “I didn’t know I couldn’t ask for . . . yet.” So if you are getting more push-back than which you are comfortable from your school district, or a proposed IEP removes something you don’t think you can live without, file for mediation and think carefully about whether to proceed alone or with professional care.
For more information, or to schedule a consultation, contact Jayne Wesler, attorney and former Child Study Team member, who can address your concerns, answer your questions, and explain the law, or please visit www.special-ed-law.com
Courtesy of Jayne Wesler, attorney and former Child Study Team member,