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Last Updated: 11/20/2017
 

 Ask the Attorney with John Brower, J.D.

 

Question:  What can I do if an administrative complaint I made has been found valid but nothing has been done to address what my child lost due to the school not complying with IDEA?

 
Answer:  I agree that the interplay between the administrative complaint process and due process hearing is an ongoing source of confusion. As an attorney representing parents, I am aware that there are times when an administrative complaint to the ISD or MDOE is found valid, but the parent is not pleased with the final outcome. In part I believe this stems from an unwillingness on the part of the ISD Compliance Officers to do what the law requires - that is award compensatory educational services to make up for whatever services the student lost due to the school's failure to provide what the IEP or regulations required.

What is interesting is that if the parent goes to a due process hearing, a complaint that was found valid becomes "compelling evidence" as to a claim related to the past denial of a FAPE (as is proven by the complaint being found valid) and the subsequent refusal of the school to "compensate" the student for the lost services.

When this situation arises, I advise clients that have a complaint that has been found valid, but no specific relief has been awarded, to immediately ask for an IEP Team meeting (in writing) and then request (in writing) for the services they want replaced or made-up. If an exact replacement of services is not possible, consider alternate but similar services. If the IEP Team denies the request, they should do so in writing (see Prior Written Notice) and the next logical step would be to "dispute" the IEP Team's refusal to provide the comp ed services by requesting a due process hearing and/or mediation on that issue. However, be forewarned that some school attorneys will argue that this is not a "hearable issue", but I disagree and I believe many hearing officers would agree that "comp ed" claims are always hearable..

In terms of attorneys fees for due process, as neither side is required to have an attorney represent them during a due process hearing, each side is fully responsible for their own fees and costs. However, Congress realizing the imbalance between the schools (who use taxpayer funds to pay for their attorneys) and parents who use their own funds, included in IDEA and 504 the right for the parent (and not the school) to be able to seek reimbursement for their fees and costs IF the parent prevails at due process and on appeal (if any). Therefore, independent of the outcome of a hearing the school is responsible for the cost of their attorney, the cost of substitute teachers for witnesses, the cost of the court reporter, etc. While parents are not liable for the school's legal fees (and I understand some members of Congress are trying to change this part of the law when IDEA is re-authorized) the potential liability for the school legal fees changes if the matter proceeds to court. There, pursuant to the federal and state court rules, both the attorney and/or client for either side can be found liable for the other sides attorney's fees and costs if the court determines that a lawsuit has no sound legal basis or that a motion was filed for improper purposes. While there are a few cases where the court has awarded schools their fees, such cases are very rare.

I hope this answers your question.
 
John F. Brower, JD
Educational Law Center, PLLC
www.michedlawcenter.com  

 

Education Law Center, PLLC 810-227-9850 www.michedlawcenter.com 

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