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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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