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Here are some important developments or events that you should be aware of in protecting your child's needs.

The Clock is Ticking

Among the mass of laws, rules and regulations of Special Education beats the ticking of a clock, set to cost you money or preclude you from getting the services and placement for your child. It seems dramatic because it is.

Wait one day past 90 days and you cannot bring a lawsuit for even the most heinous of negligence or mistreatment of your child.

Wait one day past 30 days and you cannot appeal the most obviously damaging ruling to the Commissioner of the State Department of Education.

Fail to give the full 10 day notice before removing your child to a private placement and you may find yourself paying the bill.

The point is that unless you are really up on all the laws, rules and regulations of Special Education and the time limits involved, you need to consult a professional.

Who's Burden Is It?

In the US Supreme Court case Schaffer v. Weast (126 SCt 528 [2005]) the Court said that the party that is seeking the impartial hearing has the burden of persuasion. That's an Important rule because whomever has the burden has an uphill battle. They have to affirmatively prove the case. If you are the other party you do not have to even present a defense, all you have to do is say that the moving party did not reach their burden of persuasion.

Prior to this ruling the general rule in New York state was that the School District had the burden to defend all its actions and decisions. This decision changed that and reversed general rule. As written by Phyllis Saxe "Parents may become too intimidated to advance their due process rights without engaging counsel and of course, engaging counsel may result in an increase of costs - a result that the recent IDEA amendments was designed to curtail. Although attorney's fees are recoverable if the parents are successful in an IDEA matter, this change in the burden of persuasion will force many parents to either find the money to pay for attorney's fees or to forgo challenging the IEP."

The New York State Legislature Amended §4404 of the Education Law, (Laws of New York, 2007, Chapter 583), and declared that effective Oct. 14, 2007, the  school district has the burden of proof, including the burden of persuasion, in any impartial hearing. The New York Assembly wrote: "This bill seeks to maintain New York's long-standing policy that the burden of proof should be on school districts in a dispute on a student's special education placement and ensure that all students of New York State are afforded the quality education that they need and deserve."

School Districts Can't Require Failure

Two very important tuition reimbursement cases went before the U.S. Supreme Court with the same question: Can a School District require that parents are not entitled to tuition reimbursement unless their child was previously enrolled in the public school's special education program. In Tom F. [Tom F. claimed New York City’s program did not provide appropriate instruction for his disabled child] and the Frank G. cases the U.S. Supreme Court allowed the lower Court ruling that the School District could not make such a requirement stand.

Children who need services not provided by their school district are not required to send them to the local school, ostensibly to fail, before placing them in an appropriate setting.

Congress Looking to Reimburse for Experts

On November 14, 2007, Congressman Chris Van Hollen of Maryland and Congressman Pete Sessions of Texas introduced the IDEA Fairness Restoration Act, H.R. 4188.  This bipartisan bill would allow prevailing parents to recoup their expert costs in litigation under the Individuals with Disabilities Education Act.  The bill would restore Congress' original intent in granting parents the ability to recover their attorneys' fees and costs when they prevail in IDEA cases.

NYS Special Education Impartial Hearing Outcomes

When parents and school districts cannot resolve issues relating to providing a Free Appropriate Public Education (FAPE) to a student using the standard administrative procedures, one of the final recourses is to initiate a complaint for a Due Process Impartial Hearing.

We have prepared a report on our analysis of these complaints. It can be found here



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This site is provided as an informational resource only and should not be construed as legal advice. It may or may not  reflect current legal developments. The law is always changing. State regulations may differ in specific procedural rules and content. This information is not intended to constitute legal advice or substitute for obtaining legal advice from your own counsel.