Agins & Gilman LLC
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Updated 6.26.17

Shoe of the Month Blog
April 19, 2017

SCHOOL CHOICE FOR CHILDREN WITH DISABILITIES

There has been a lot of discussion recently around the issue of school choice in Ohio. At present, there is a proposal pending in the Ohio Senate Education Committee (Sen. Bill 85) to create additional vouchers for non-disabled students to attend private schools of their choice. There is not expected to be any impact of this proposed program on the availability of school vouchers for students with disabilities. As to the impact it will have more globally, we cannot say, though there is concern that the exodus of students from public schools would result in greater segregation for students with disabilities who may not have all of the same options.

Ohio currently has two voucher programs serving students with disabilities-the Autism Scholarship program and the Jon Peterson Scholarship program. The Autism Scholarship program allows parents of students with an IDEA classification of Autism to receive up to $27,000 per year to pay for private services by an approved provider(s). The Peterson Scholarship allows for varying amounts depending on the child’s eligibility category under the IDEA. The information about qualifying and application is available on the Ohio Department of Education’s website.  

Articles published recently in the New York Times and elsewhere have highlighted the ups and downs of vouchers. Regardless of where you stand on school choice, parents need to be aware of the consequences of their decision to obtain a voucher for their child. In Ohio, parents who use either one of the scholarship programs agree to give up their child’s right to receive a free appropriate public education from their local school district. That means that if you are unhappy with the choice you made regarding the private voucher provider you are using, you will have no recourse to proceed against your school district as you would if your child were in public school. The purpose of the scholarship programs was to allow parents a choice of programs in exchange for which they have given up the right to FAPE.

What about your rights vis-á-vis the voucher school? What rights do parents have to proceed against those schools in the event they violate the child’s rights?  

First, parents should always be careful to read the contract they enter into with the private school. That document will govern much of the relationship between the parents and school. Make sure you understand the policies regarding admission, classroom placement, service provision, contract renewal and discipline. Schools receiving voucher funds (and even those that are not) may still be required to comply with the Americans with Disabilities Act, which would require them to make reasonable accommodations for a student with disabilities. So if your child is in a private school, and the school fails to renew your child for the coming year based on his or her disability, you may have a claim against them in the event the school has failed to make reasonable accommodation.

Autism Scholarship students, at least until Ohio changes the law, may have a third party action against a voucher program in the event the program fails to provide a free appropriate public education. That is because at present, the law requires autism voucher schools to comply with all the laws governing the education of children with disabilities, including the IDEA. That provision of the law is under consideration and will likely be removed. This provision is not present in the Jon Peterson Scholarship law.

What if your child is abused or gets injured as the result of someone’s behavior at school? You can sue a private school as well as the individuals who work there, for negligence. This type of action is not afforded to students who attend public school where simple negligence cannot be alleged against either the school district or its staff. Again, however, the contract you sign with the school may limit your rights so be sure to check it carefully.  

What if your child is excluded from the private school? Again, many private schools must make reasonable accommodation for students with disabilities. However, a private school need not make substantive changes to its program to make it suitable for your child, so a voucher program can choose the students they believe are best suited to their program. Even if they accept voucher money, they do not have to admit your child with a disability if your child does not meet the admission requirements of their school.  

What about a civil rights action for discrimination against a private voucher program? Voucher programs cannot discriminate against students on the basis of race, color or nationality. They may, under certain circumstances, restrict students by gender and religion. Most private schools receive some federal funding, and that is certainly true of voucher programs for students with disabilities.  

If your child is the victim of bullying by another student or students, you may have an action against the school for failing to protect them. However, most of the time those matters are better handled by the Office for Civil Rights (“OCR”) rather than in an action against the school. So long as the school receives some federal funding, the OCR may receive complaints about it. Those complaints can be filed online without assistance from a lawyer.

The school choice programs in Ohio have afforded parents many more options than they otherwise might have had. Remember though, that parents need to be educated consumers. Not all programs are created equal and some are better than others. Not every program is designed to meet every need. There is not a lot of accountability in Ohio regarding the quality of individual programs, so do your homework to make sure your scholarship dollars are well spent.  

June 5, 2017

WHAT IS A DUE PROCESS HEARING?

Most parents are aware that when they have a dispute with their school district, they have various ways in which they can pursue a remedy on behalf of their child. One of those is to file a due process request. Due process in the special education context is an administrative proceeding that begins by filing a complaint with your superintendent. This complaint generally requests a hearing before an impartial hearing officer appointed by the Ohio Department of Education (“ODE”). Hearing officers in Ohio are attorneys who have specialized knowledge in matters relating to special education law. They are not employees of the State.  

A due process complaint is basically a lawsuit against your school district; it is just not filed in a court (at least initially). Such complaints must contain specific information in order to be deemed “sufficient.” You can check the requirements for a complaint here. (http://education.ohio.gov/getattachment/Topics/Special-Education/Dispute-Resolution/Due-Process-Complaint-and-Request-for-Due-Process-Hearing-2-28-17.pdf.aspx) . The school district has 15 calendar days from the date of the hearing request to convene a resolution session with the parent to address the issues raised in the due process complaint. Resolution sessions are similar to IEP meetings as far as who should attend. There are no third party mediators or hearing officers at a resolutions session. Parties may also request mediation which is an informal means of dispute resolution facilitated by a third person appointed by ODE. Mediation is voluntary and must be agreed to by both sides. Parties may have resolution or mediation or both, but if the school district demands a resolution session, the parents must attend or they cannot proceed to a hearing. Mediators do not make decisions for either party. Their role is to broker an agreement that will be acceptable to both sides.  

If the parties reach agreement at resolution or mediation, a written agreement must be entered into and signed by both parties. The due process case will then be dismissed. If no agreement is reached, the hearing officer appointed to the case will set hearing dates. The due date for a decision by a hearing officer is no more than 75 days from the date the due process is filed. Either side can request an extension of the decision date, which is a common practice in this area of the law simply because the timelines are so restrictive.  

At least five business days prior to the start of the hearing, the parties will have a disclosure conference where they must disclose all the documents they intend to present at the hearing, and provide the hearing officer and the other side with a witness and exhibit list. Due process hearings are frequently held on nonconsecutive days and sometimes occur over a period of several months to accommodate the parties’ schedules. The length of a hearing depends on the complexity of the issues, (and the verbosity of those presenting the evidence). Hearings are just like trials you may see on T.V.- each side can compel the attendance of witnesses through a subpoena issued by the hearing officer, and there is examination and cross examination of witnesses, evidentiary objections, etc. Most hearing officers require a legal brief from each side after the hearing to argue the relevant law and show how it applies to the facts that came into evidence at the hearing. While it is not necessary to have a lawyer representing you at a hearing, most parents would be smart to consider retaining one as the complexity of these proceedings makes it difficult for most parents to navigate. The special education laws permit parents who prevail at a hearing to recoup their reasonable attorneys’ fees from the school district.  

The hearing is transcribed by a court reporter and each side will receive a copy. The district must pay for the parents’ copy of the hearing transcript. After briefs are filed with the hearing officer, the hearing officer will issue a written decision within the time frames allowed or agreed to by the parties. Either side may appeal a hearing officer’s decision to a second tier administrative hearing officer within 45 days of the decision. Sometimes each side will prevail on some issues but not others so it is possible for both sides to appeal. The second tier in Ohio consists of a state level review officer who receives the record of the case, generally has the parties brief the issues remaining, and issues a decision within 30 days. Again, extensions are often requested. These second tier hearing officers may request a brief but usually do not allow additional evidence in the record beyond what was already admitted at the hearing. Once the state level review officer has issued a written decision, either side may seek review in federal or state court.

The decision to seek a due process hearing is not one that should be made lightly. Due process hearings are very labor intensive and time consuming. Preparation is key, particularly since Ohio does not permit any depositions or other pre-hearing discovery. You will not know what is going to come out in evidence until you are in the hearing. Many parents feel as though they want their day in court. But litigation is expensive, and is to be avoided unless there is no other option for the student. Some attorneys, including those in this office, will take some cases without payment, but the ability to do that will depend on the strength of the case, anticipated cost of experts and time available. Most attorneys charge a flat rate and will agree to try and collect the remainder of their fees if they prevail.  

Finally, parents who pursue due process need to know that if they or their attorney files a claim that is found to be frivolous or filed for an improper purpose, the school district can seek fees against them and their lawyer. Generally, it is very difficult for districts to obtain fees under this provision as the evidence necessary to prove that a claim was frivolous is quite high, as it should be. But this provision should give parents pause about pursuing claims on their own.  

When deciding whether to file a due process, ask the attorney about their track record. How many hearings have they had? How many were successful? How much will it cost? How long will it take? And most important, is what the student will be getting worth the time and expense of fighting 
JULY 25, ​2017

DO I ABSOLUTELY, POSITIVELY HAVE TO HAVE A LAWYER?

This is a question we often have to address with folks who call us. And the majority of the time, the answer to that question is "no," a lawyer is not absolutely necessary. When parents are unhappy with their child's program, and most particularly where the trust in the school district has eroded, calling a lawyer can be a knee jerk reaction. For many, that response seems warranted because they believe the school district is no longer listening to them, and that the presence of an attorney will make them sit up and take notice. Certainly, the presence of a lawyer changes the dynamic of discussions with a school district. IEP meetings become more formal, and generally the school district will have its lawyer present for those meetings as well.  

But having a lawyer may not always be the best option. Aside from the expense of hiring an attorney, there are other things to consider. One of those is looking at the issues parents are having. If, for example, the principal concern is that the parents feel overwhelmed, and are unable to articulate their concerns to the team either because the laws are too difficult to navigate, or because anxiety gets in the way, parents should consider using a lay advocate to assist. Lay advocates are common in Ohio and there are many who are skilled in assisting parents to understand what their rights are and how to advocate. Lay advocates often attend meetings and speak for parents who may be unable in that situation to adequately identify the specifics of their concerns. 

When choosing a lay advocate, be sure and inquire as to the person's experience, and ask about their fees. Different advocates have different approaches so be sure the one you choose shares your style of communicating. If you want to be cooperative, and you go into a meeting with someone who has an aggressive or combative attitude, that person may not be the right one for you. Anyone who does lay advocacy should have insurance, and should look and act in a professional manner. Lay advocates are not lawyers, and under Ohio law, they are not permitted to advise you as to your legal rights. That is a rather fuzzy line in special education, but be aware that when you sign something, whether it is an IEP or a mediation agreement, that is a legal document and only an attorney can advise you as to how it will impact your – or your child’s - rights. Lay advocates should be attuned to when they themselves have reached a point where a lawyer is necessary to assist the parents.  

Even when parents are in dispute with the district, lay advocates can assist in the filing of a complaint to the Ohio Department of Education. Many lay advocates have extensive experience in filing complaints, and that is one way to resolve disputes in a reasonably efficient and inexpensive manner. But be cautious if you engage in mediation. At mediation, parents are asked to enter into legally binding settlement agreements and many include clauses that release legal rights. You should not do that without consulting a lawyer. Most school districts who draft mediation agreements will include a general release of liability, and parents may not understand what they are giving up, or what they are getting in return. Often when we see mediation agreements signed without an attorney, the problems are too late to fix.  

Some disputes, though, do require a lawyer, but only a lawyer can tell you that for sure. Generally when a parent is going to file a due process, they are better off to have an attorney. A lay advocate in Ohio is not permitted to appear at a due process and represent a parent at a hearing, though they can certainly attend and assist. Due process hearings are essentially bench trials, and most parents will significantly increase their chances of prevailing if they have an attorney. Additionally, parents face the possibility of having to pay the legal fees of the school district if the district prevails at the hearing and the claims brought in a due process request were for an improper purpose. Attorneys will advise you as to your potential liability for fees under those conditions.

Other considerations include what to do when the school has brought in their attorney. Many lay advocates are comfortable appearing at meetings where the district's attorney is present. Others are not. Parents need to decide where their comfort level is, and whether they feel the need for their own counsel.  

In the end, parents are often left to determine whether they are better off spending their money on their child, or better off spending it on a lawyer. Generally speaking, the answer will usually be the former. For parents who cannot afford a lawyer, many of us in Ohio will, and have, represented parents without expectation of payment unless the parent prevails and fees can be recovered from the school district. Finally, some cases have components that go beyond the special education issues and may impact the child's, or the parents', civil rights. While parents do not need an attorney to file a complaint with the Office for Civil Rights, filing a complaint in federal court in a civil rights action will require a lawyer.  

Most lawyers in Ohio work cooperatively with lay advocates, parent mentors and others. Don't hesitate to call an attorney if unsure about whether one is necessary. Any good parent attorney will provide you with an assessment of the matter that will reveal the best, and most cost effective, way to proceed.