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What About Due Process?

Due process is not the place for emotion.

Due process is the place where you show off your hard work. Your hard work is the audio taping of IEP meetings, all those follow up letters you wrote trying to obtain services for your child. It is the evidence of why you need services that allow your child to be successful instead the bone public school systems are throwing with cookie cutter programs facilitated by untrained staff.

What does the law say? It says something to the effect that the child must have an opportunity to succeed. This is also known as a “floor” of opportunity. Many public school people by virtue of ignorance think anything they provide is a “floor.” It’s not a floor if “calculated” progress cannot be defined. School systems are obligated to offer “mediation” before the Due Process Hearing. The biggest concern in every parent’s mind that comes up when a situation becomes a little adversarial is whether harm will come to the child involved while he is at school.

GET STARTED

It is important to think about a few things here. As a parent of a special needs child you need to establish what your goals are for your child. It needs to written down and refined.
Start off something like this……

Goals:
  1. Be a productive United States citizen upon completion of twelve to fourteen years of education.
  2. Learn to sit in a chair.
  3. Be able to communicate with parents and others.
  4. My child will be able to identify people who can provide help to him or her.
  5. Get potty trained by age 5, 6, 7, 8, 9, 10 ect...
  6. Be taught to eat with fork, spoon, and knife.
  7. Be able to dress themselves.
  8. Learn not to have tantrums in public.
  9. To be accepted by people in the community.
  10. I have been dealing with public school people for years now and just want the McKay money; I don’t want to be bothered with the aggravation of dealing with public school people anymore. I am so fed up, I don’t trust public school people; I know I can do a better job helping my child to become educated. I want the MOST McKay funding I can get.
  11. I would like to see my child master the goals on the IEP.
If 3-4 or more items from above end up on your list you may be headed to Due Process.

The Division of Administrative Hearings in Florida has a wonderful web site. The DOAH website has an outstanding search engine that can provide valuable clues for successful strategies. In Florida, from the DOAH web site, we have found statistically that Exceptional Student Education is in Due Process all the time. On average over the last five years, in excess of one hundred requests per year were for Due Process Hearings in Special Education. This is about 2 cases per week every week in the state of Florida. Based on the numbers alone it could be very easy to conclude Exceptional Student Education in Florida has significant problems educating disabled children.

WHO "WINS" AT DUE PROCESS HEARINGS????

This was the first thing we wanted to know when faced with Due Process.

By the numbers in favorable outcomes for children and their parents, on “Final Decisions,”case by case it appears virtually children and parents almost never “win.”

But a closer look at the web site reveals some very encouraging information about Due Process.

In looking at the number of cases in any given year, it was revealed that the majority of cases presented for Due process were dismissed without hearing. What this could mean is that the majority of cases being filed for Due Process get mediated out. It is quite interesting to this author that many cases “Won” by the school district seem to be those that were not well prepared, had emotional overtones present or did not have attorney involvement.

MEDIATION CAN BE THE BEST WAY TO WIN...

Mediation, like everything else, has pros and cons. Happiness with the outcome is in the eye of the beholder. To this author’s knowledge most mediation agreements cannot be discussed outside the mediation room. Generally we found that if things are not written down distinctly, the spirit of the mediation agreement can be easily lost by the school board staff members.

Successful Exceptional Student Education or Special Ed cases are “client driven.” “Client Driven” in Special Ed Law is about what the client comes up with relative to documentation to have a viable case for a lawyer to defend. It is most times a careful collection of documentation that can show a child is not being provided a free and appropriate public education otherwise known as “FAPE.” This can be upsetting to some parents as they think they just hire a lawyer and the lawyer comes up with the case.

Attorney or lawyers are a necessary evil most times to a successful case. Having to pay attorney fees is definitely a disadvantage for mediation. For due process, these fees can be paid for by the school board if the parent wins. We recommend that when parents decide they must be proactive on behalf of their disabled children, they look prior at available legal assistance to consult with in the event they are unsuccessful in collaborating with school staff.
Parents are usually very angry when they find they might need a lawyer to have success in getting their child educated. It’s okay to be angry, but be angry at home, not at the child’s school. Parents who cannot receive validation of anger at school staff from family and friends many times become depressed and as equally ineffective as the parent who screams at meetings. They almost always blame themselves for the child’s disabilities.

We have found that children with milder disabilities are easier to teach and resistance from school staff to provide appropriate services is almost nonexistent. Most ESE departments can, with parent collaboration, teach a child with mild disabilities to learn. Road blocks for parents with severely disabled children are usually about teacher to student staff ratio that is too high and inadequate staff training. It is not unusual to find a teacher without specialized training teaching non verbal children. Teachers without adequate training many times cannot provide “calculated” success for a child if they cannot teach in a manner a child can learn.

Documentation most of the time is the basis for a suit that says “FAPE” has not occurred on behalf of a child. Outside private consultation reports with specific recommendations for your child are documentation. Professionals that come and work usually provide teaching strategies. Are they effective and is enough staff present to implement them? Is the intervention intense enough to hold the child’s attention? How does the teacher document successful learning? Be aware that if the child is not learning, they have not been taught well. Blaming a disabled child for not being able to learn, is almost always the combination of an ineffective teacher, poor teaching environment and inadequate administrative support. Pictures that are taken of the classroom setting are documentation. Audio tape recordings are documentation. Video tapes of a child before and after interventions that show progress are difficult to dispute and are the best documentation. Making a list of questions to ask in a tape recorded meeting of teacher qualifications and experience are invaluable to determine if “calculated success” can occur. It is very difficult for a teacher to teach sign language if they don’t know sign language.

Importantly be aware that children who are physically abused in public school settings are not receiving FAPE. We have found in our experience where there is smoke there is a fire. If you have a feeling something has or is happening to your child, by all means do what you need to do to prove it even if it means digging around in trash to find a former school employee. We recommend that involved school staff be contacted by local law enforcement as soon as possible. We have found that when school employees are investigated by school employed investigative staff, these alleged occurrences are rarely “found to be true.” We have also found in some instances later that school staff as a result of concern over future employment often had difficulty “remembering” what happened to the child.

We believe that children who have poor communication skills to be at the greatest risk for abuse. These children also have a greater risk for abuse in a school setting also if they have behavior problems as well.

TRYING TO SAVE THE WORLD?????

In looking back at experiences relative to the legal process, due process and mediation, the biggest disappointment has been the work of the Autism Advisory Counsel of Duval County. (Jacksonville Florida) formed in 2001 as part of a severely Autistic child's federally ordered mediation to improve Exceptional Student Education Programs for children with Autism. Unfortunately, little evidence exists today that meaningful improvement has occurred for autistic children with moderate/severe disability over the last three years.

It is unknown to us if any improvements have been made that are science based and proven to work relative to teacher training for moderate/severely disabled Autistic children. At present in Duval County, ongoing direct performance based evaluations of a teacher’s ability to teach does not exist. Interventions that require intensive one to one teacher student ratio are not as rule observed for teaching effectiveness. It seems to be a given that anyone who teaches in ESE is able to teach a moderate to severely disabled Autistic child. Consultative services from certified experts can be requested every sixty days if a teacher is interested. Again these services are not evaluated for performance for effective teaching. To our knowledge the district has yet to send out information listing the improvements of the ESE programs or what schools are involved.

The authors of this web site have written, co-wrote or edited no less than 5 letters requesting Due Process involving children from the county's largest public school population of Autistic children in Duval County. All the cases mediated ensuring the success for the children and these cases occurred during the 2003/2004 school year. These cases including a situation of child abuse by school staff revolve around the inability of the county to provide adequate training to teachers, paraprofessionals and support staff. In essence this so called Advisory Counsel has the appearance of being a means for the public school system to repackage the usual "do as little as possible" in a different wrapper.

It may seem reasonable to accept that everything is a process and takes time. But must children with the greatest problems continue to be detained and suffer mediocrity at the hands of dinosaurs, or those who are overwhelmed, judgmental, uninspired, or ignorant of any process, to leave before real change occurs? Perhaps the continuance of wasting valuable educational time will empower parents to believe the benefit of every parent acting as every man for himself for the sake of a disabled child. Collaboration or the idea that “it takes a village” to raise a child is only as good as the inhabitants of the village. No parent would want an inadequately trained professional teaching their child. Poorly trained teachers, oblivious administrators, and uneducated paraprofessionals turn village citizens into village idiots.

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