Get Your Facts Straight When Filing Complaints

As much as I personally hate filing complaints against public agencies, sometimes I find it necessary in order to achieve an appropriate outcome for a student with special needs.  It’s not the task of putting together a complaint that bothers me; after over 18 years of advocating for students with special needs, I’ve gotten pretty good at assembling the necessary evidence and figuring out what allegations to assert.  What I hate is what makes complaints necessary – somebody is doing something that deprives a child, to that child’s detriment, of an educational right and that just makes my blood boil.

In special education, there are several types of complaints that can be filed:  due process complaints, compliance complaints, and 504 complaints for the most part. Regardless of what type of complaint needs to be filed, you absolutely, positively must have your facts straight and your evidence together to support the facts of the case.

For the purpose of illustrating my point in this blog posting, I’m going to focus on the filing of compliance complaints with your state’s Department of Education.? Compliance complaints are filed when your local education agency (“LEA”) has violated the regulations and failed to follow the proper procedures, whether those are state or federal regulations.? Compliance complaints do not address issues involving substantive harm; those are the kinds of issues that get addressed by due process complaints.

To help distinguish between the two types of complaints, let’s say that a child’s parents disagreed with his school district’s recent special education assessment results and requested an independent educational evaluation (“IEE”) at public expense but the school district denied the request and took no further action.? Procedurally, this is a violation because the only way an LEA can legally refuse to fund an IEE is to prove through a due process hearing that the assessment with which the parents disagreed was competently performed and sufficient under the requirements of the regulations.

Therefore, in order to deny the parents’ request for the IEE at public expense, the school district would have had to file for due process to assert the appropriateness of its assessment.? All things being equal, it’s usually far less costly for the LEA to simply fund the IEE than to sue the parents to dispute it.

However, let’s say in this example that not only did the district refuse to fund the IEE and fail to file for due process, but that the child continued to fail to receive educational benefit because he had not been competently assessed in all areas of suspected disability by the district and the parents had been right to disagree with its assessment and ask for an IEE.? Now, the child has been substantively denied a FAPE because the IEP team had been without sufficient information about his needs to craft an IEP that was reasonably calculated to render educational benefit.? Further, his parents were denied meaningful participation in the IEP process by being deprived of necessary assessment data and the opportunity to get it via an IEE, which can also be found to result in a denial of a FAPE.

This is the kind of thing that results in a due process filing because the question at this point is:? How much educational benefit did the child fail to receive and what type of compensatory education is he due to make up for this substantive harm? It’s no longer just a matter of whether the district failed to follow the proper procedures; now it’s a matter of what harm resulted from its failure to follow the proper procedures.

Sometimes when parents and advocates are trying to prevent litigation, the best way they can do that is with a well formulated compliance complaint.? If you can get it sustained that the law was broken, you’ve eliminated 50% of the examination a hearing officer would otherwise have to make if the matter were to go to hearing.

A compliance investigator only has to determine whether or not the law was broken.? But a procedural violation that results in substantive harm that is taken straight to due process requires the hearing officer to first determine whether a procedural violation took place and then whether it resulted in substantive harm.

If you have compliance complaint findings that establish for the record that the law was, in fact, broken then the only thing the hearing officer has to determine is whether or not substantive harm resulted from the unlawful conduct.? That the law was broken is a foregone conclusion and presumed to be fact.

This is why, in most cases where I’ve had to file compliance complaints, things quickly de-escalate once the results come back.? The involved LEA knows that any findings against it will end up in evidence and they will have a lot of explaining to do if the case goes to hearing.? The best way to prevent litigation is to prepare for it.

But this sword cuts both ways.? If you file a compliance complaint and the LEA is found to have operated within the law, a copy of your compliance complaint and the findings of compliance will likely be introduced into evidence in due process by the LEA to demonstrate that it hasn’t broken the law and that you are a crackpot filing unfounded complaints, thereby suggesting that your due process complaint is also unfounded and you shouldn’t be taken seriously by the hearing officer.

Due process is not the place to argue that a complaint was wrongly determined by the state’s Department of Education.? There is a separate appeal process for that and a special education hearing officer lacks the authority to overturn a compliance complaint decision or re-try the issue.? The results of a compliance complaint are taken at face value in due process.? Therefore, it’s critically important that you do it right when you initially file so that you are less likely to encounter unnecessary problems later on and that means starting out with having your facts straight and evidence in order.

As with any type of complaint process, compliance complaints are supposed to involve an examination of the facts and a comparison of those facts against the procedural requirements established by the regulations.? Facts are not he-said/she-said opposing points of view.? Facts are things that are borne out by the evidence.

It is in an effort to preserve the facts for the record that we audio record every IEP meeting we attend on behalf of the parents, do everything we can with public agencies in writing (even if that means memorializing our telephone conversations in emails or letters), and request a copy of each student’s records on behalf of his/her parents when we begin a new case.? A comprehensive records review is a necessary part of each case we do.? By arranging all of the documents in chronological order, we can go step-by-step through the story as told by the record and then reconcile that against what the parents told us when they first came to us.

If we become aware of any violations, our first step is usually to document them in a records review report to the parents.? In the very least, we’ll list them out and have a meeting with the parents to talk about them.? From there, our next step as lay advocates is usually to write a letter on behalf of the parents to their LEA outlining the violations and specifying requested remedies, bearing in mind that the remedies we can ask for are limited by what is reasonably achievable were we to file complaints.

Most times, LEAs respond to a succinctly organized and worded demand letter in a constructive manner.? While we’d like to think that this is mostly due to an administrator’s well-intended desire to do the right thing, it has not escaped our attention that it is rather frequently the case that administrators just don’t want to get sued.? They can see how the problems we’ve outlined would not reflect well on the LEA in a compliance complaint or at hearing and the remedies we’re asking for are entirely reasonable.

On the rare occasion that some high-ranking person within the LEA loses his/her mind and decides to treat the situation as a power struggle rather than an attempt to resolve a dispute, our documents speak for themselves and things usually come together eventually.? That’s because we’ve gotten our facts straight and don’t assert things that cannot be borne out by the evidence.

So, in our example above, where the parents disagreed with their district’s assessment and requested an IEE at public expense, which the district subsequently denied and took no further action, we would first go to the district and point out the error of their ways, asking them to please fund the IEE.? If the district dug in its heels further rather than do the right thing, we would then file a compliance complaint alleging a failure to follow the proper procedures when a parent requests an IEE at public expense.

To demonstrate the facts of the case, we would attach as exhibits the following items:

  • The parents’ letter indicating their disagreement with the district’s assessment and requesting the IEE at public expense
  • The district’s letter denying the IEE
  • Our follow up letter pointing out that the district has to file for due process if it’s going to deny the IEE and asking that it reconsider and fund the IEE.

We would be sure enough time had passed after our demand letter for the district to file for due process, then let the record show that it didn’t before filing the complaint.? The more likely outcome, however, is that the district would cough up an assessment plan for the IEE.

You need to be aware of your state’s timelines for filing compliance complaints.? You can contact your state’s Department of Education compliance complaint unit for more information about the complaint timelines.? (In California, it’s one year from the date you knew or should have known about the violation – essentially, one year from the date the violation occurred.)

An example of what not to do might look like this: A parent verbally disagrees with the LEA’s assessment during an IEP meeting and requests an IEE at public expense.? Her disagreement and request are not recorded in the IEP meeting notes.? The LEA’s special education administrator tells her at the IEP meeting that someone will get back to her on her IEE request.? She submits nothing in writing to the LEA expressing her disagreement and weeks pass with no response from the LEA regarding her verbal request for the IEE that was made during the IEP meeting.

Finally, she decides to file a compliance complaint.? She writes a letter to her state Department of Education alleging failure to follow proper procedures in response to a parent request for an IEE at public expense.? She explains in her complaint that she made a request for an IEE after disagreeing with the District’s assessment at the IEP meeting.? An investigation gets opened and the parent gets a phone call from the investigator.? The call might go something like this:

Investigator: “Mrs. Jones, when did you inform the district that you disagreed with its assessment?”

Mrs. Jones: “At the IEP meeting of August 30, 2009.”

Investigator: “I’m looking at a copy of the August 30, 2009 IEP and can’t find any reference in this document to any disagrement on your part to the assessment or a request for an IEE.? Can you tell me what page it’s on?”

Mrs. Jones: “It’s not on any page.? They didn’t write it down.”

Investigator: “Did you subsequently submit anything in writing expressing your disagreement and requesting an IEE?”

Mrs. Jones: “I didn’t think I had to.? We talked about it at the meeting and the administrator told me someone would get back to me about it.”

Investigator: “Did you audio record the IEP meeting?”

Mrs. Jones: “No.”

Investigator: “Mrs. Jones, are you aware that the District claims that you never disagreed with its assessment or asked for an IEE?”

Mrs. Jones: “What?!!!!!”

A few weeks later Mrs. Jones gets a letter finding the district in compliance, explaining that there is no evidence of wrong-doing.

Another example of what not to do would be: A parent is speaking with her child’s teacher at the end of the school day as she picks him up from school.? Unbeknownst to this parent, the teacher has grown to dislike the principal over some unrelated issue.? The teacher will also gossip with whoever will listen, including the parent.? The parent is largely indifferent to the information the teacher discloses to her, but she wants the keep things cool between herself and the teacher for the sake of her child, so she indulges her.

On this particular day, the teacher tells the parent, “I probably shouldn’t be telling you this, but we had a meeting the other day and the principal told us that she doesn’t believe in full inclusion. She’s planning on placing your son in a special day class at another campus on the other side of town as soon as she can.? I just thought you should know.”? The parent understandably freaks out.

Knowing that placement decisions can’t be made outside of the IEP process, the parent panics and files a compliance complaint the next day alleging that the principal has failed to follow the proper procedures to change her son’s placement.? As it turns out, there is nothing in the record to suggest that the principal had any intentions to try to change the child’s placement.? When asked about it, the principal has no idea what is going on and claims she never said any such thing.

When the teacher is asked about it, she says that the parent must have misunderstood her.? She? tells the investigator that she did tell the parent about a staff training she attended on full inclusion and the types of students who can be fully included, but she never said anything about this parent’s child specifically.? “Besides,” she tells the investigator, “the principal can’t change any special education student’s placement.? That’s an IEP team decision.”

Now the parent looks like a fool and of course the allegation isn’t sustained.? The parent had a knee-jerk reaction and failed to confirm the facts.

The proper course of action would have been for the parent to request a copy of her son’s student records and write a letter to the principal asking if the principal has any concerns regarding her son’s placement that would make the principal think that his placement needed to be changed.? The principal would have been compelled to make the record in response and write back with a formal response.? Upon receiving the records and the principal’s response, the parent would have then been in a position to determine whether or not there was even a need to file a complaint, much less any evidence to support the allegation.

I hope you can see from this how important it is to have your facts straight and your evidence in order before you go off accusing people of anything.? Even if your allegations are true, you have to be able to prove them or they may as well not be.

Anne M. Zachry, M.A. Ed. Psych. on Linkedin
Anne M. Zachry, M.A. Ed. Psych.
Anne M. Zachry, M.A. Ed. Psych.
Anne has worked as a special education and disability resource lay advocate since 1991 and as a paralegal to attorneys working in special education and disability rights law since 2005. She earned her master's degree in educational psychology in 2013, with emphasis on human development, learning and memory, evidence-based instruction, and educational program design and evaluation. She has received additional training in mediation and post-graduate studies in applied behavioral analysis and individualized educational data collection methodologies.

0 thoughts on “Get Your Facts Straight When Filing Complaints”

  1. Can a state complaint (we’re in CA) be filed if dates are set for mediation or a due process hearing? It sounds like a good idea to get the compliance violations squared away first.

    Friends of mine have ended up signing “letters of understanding” during mediation that they couldn’t file state complaints or sue the district. I wasn’t sure if a compliance request could be investigated if mediation was already scheduled.

    Also, if there just isn’t enough information in our records to understand how data was collected or why services were changed, can we request PWN or is it too late after mediation/due process dates have been set?

    Thanks!

    1. Amy,

      Wow! Complex questions and I’ll do my best to answer, though you may want to call the Procedural Safeguards Referral Service of the California Department of Education (“CDE”) at 800-926-0648 to get additional clarification. If you’re taking your district to due process with the assistance of an attorney, he/she should know this stuff, so I’m presuming that you’re doing it on your own.

      In California, if you have filed for due process, if you file compliance complaints after you’ve already filed your due process request, CDE will refuse to open an investigation because it presumes that you will address the procedural violations through the due process mechanism. If you go all the way through hearing and the outcome is that the procedural violations about which you have concerns were never addressed through the due process action, it may be possible to get CDE to still investigate them if you can show they were never addressed as part of your due process complaint, but this is a hard thing to sell them on from what I’ve seen. I’ve seen it done, but it took a Herculean effort to make it happen.

      Bear in mind, too, that compliance complaints in California are bound by a 1-year statute of limitations, meaning that you have to file within one year of the procedural violation in order for it to be investigated. Due process carries a 2-year statute of limitations. So, if the procedural violation is more than a year old but less than two years old, you’re pretty much stuck with dealing with it in due process instead of a compliance complaint.

      It’s not impossible to address procedural violations through due process, but generally speaking, a hearing officer only cares about procedural violations if they result in substantive harm to the child. So, for example, if you made a request for copies of student records, which must be remitted within 5 business days pursuant to EC Sec. 56504, and the District takes 8 business days to get them to you, that’s a procedural violation. However, it would be a pretty extreme circumstance for the District taking 3 days too long to get the records to you for the violation to result in the deprivation of educational benefit to your child. The only way that it might have a substantive impact is if you needed the records to prepare for an IEP meeting and you didn’t get them until after the IEP meeting was held, thereby depriving you of meaningful parent participation – but even that could take some arguing to convince the Administrative Law Judge (“ALJ”) that your child suffered harm or your parent rights were infringed upon to the degree that a FAPE was denied.

      In this example, presuming that the records were not needed in time for an IEP meeting and your right to meaningful parent participation wasn’t infringed upon due to the 3-day delay, at most you have a procedural violation but not a substantive claim. You can make the record regarding this violation in hearing, but you’re not going to achieve any kind of a remedy as a result of it. If you try to make it into a due process issue, you’d most likely fail to prevail on it because it didn’t result in a denial of a FAPE, in which case if you try to file a compliance complaint about it with CDE after the hearing is all said and done, CDE would likely determine that the procedural violation had already been adjudicated and therefore could not be addressed again through the complaint process. You generally don’t want to raise concerns about procedural violations as actual issues for hearing if they don’t result in a denial of a FAPE because it leaves you without recourse later on and, generally speaking, is regarded by ALJs as trivial and not worth their time – which means that you’d piss off the judge by even making a fuss about it.

      That said, there’s nothing wrong in my experience from making the record that a procedural violation occurred in the course of spelling out the facts of your case. If the hearing decision happens to mention, “… and then the District failed to timely remit the records …” it’s presumed an established fact and the reference to it in the hearing decision could potentially be used as evidence in a later compliance complaint.

      This is all academic, however, because in the real world I can’t imagine a constructive reason to file a compliance complaint about a 3-day delay in remitting student records that didn’t really hurt anybody. It’s making a mountain out of a molehill and if you’re already involved in due process, then I have to presume that you’ve got far bigger fish to fry. It really comes down to what the procedural violations are and whether they result in substantive harm.

      One possible option you may want to consider if you would rather go through the complaint process first and get your investigative findings before proceeding to hearing is to withdraw your hearing request without prejudice, thereby preserving your right to refile later on, then do your compliance complaints and see what CDE orders. Afterward, you can refile for due process and use your complaint findings as evidence. But, this can be a double-edged sword. If the investigations don’t go your way, the District could then turn around and use the findings that they were in compliance as evidence against you in hearing and try to make you out as a whacky parent with an axe to grind.

      I honestly can’t say I’m in favor of withdrawing your due process request just to file compliance complaints. It very well may make a lot more sense just to stay the course and, presuming you actually end up in hearing rather than settling the case in mediation, you could present those procedural violations that result in substantive harm as issues for hearing and any other procedural violations could be brought up just to illustrate the degree to which the District habitually violated the law throughout the statutory period, presuming that is what has happened. Procedural violations that do not result in substantive harm can be historically relevant if they help establish that the District has been habitually non-compliant, thereby putting the integrity of everything else it’s done into question.

      As for “letters of understanding,” these I suspect are more likely “Confidential Settlement Agreements.” It is expected that if you settle your claims with the District and they give you services and whatnot to make up for the harm done to your child, that you will accept the District’s considerations in exchange for a waiver of your claims. They make good on their mistakes and you agree not to hold them accountable. It is perfectly normal, and expected under most circumstances, for parents to agree not to sue or file complaints if they get remedies through the settlement agreement.

      That’s why you only sign the settlement agreement if it really makes up for the harm done. There’s nothing wrong with compromising to make the whole thing come together up to a point, but this is all about your child’s learning, which will impact him/her for the rest of his/her life. It’s not like your negotiating a business contract. As a parent, some things are simply non-negotiable. It’s up to you to determine what is a deal breaker worth taking the matter to hearing and letting a judge decide how to resolve the dispute. You have to bear in mind that the ALJ may not award what you are asking for at all. In fact, you could end up with less than what you were able to get in mediation or even nothing at all.

      To complicate things further, there are times when it’s not appropriate to waive all of your claims. The example I can give you from personal experience was a case I was involved in where the student suffered personal injury requiring surgery arising from the District’s failure to write her IEP in a manner that addressed her personal safety issues, in spite of medical information provided by her mother from her doctors to the District that indicated that she had certain physical limitations. Because the IEP failed to render a FAPE, in part due to its exclusion of the limitations established by her doctors, she was placed in general education PE with no appropriate accommodations for her health conditions and ended up getting hurt and needing surgery.

      Her mother filed concurrent special education and personal injury (“PI”) actions against the District, using two different attorneys – one for the due process case and another for the PI case. When we went in to negotiate settlement to the special education claims, we made it clear from the very beginning that we were not there on behalf of the PI attorney and were not waiving any claims having to do with the PI case. We were only there to negotiate settlement to the special education claims. The agreement we ended up negotiating left the PI claims live, but everything else having to do with special education and civil rights were waived in exchange for the considerations the student received.

      The whole point of going through all of this is to get your child the help that he/she needs. Period. If you get that, then letting all of the claims up through the date of the execution of the settlement agreement (which is the date everybody signs it) shouldn’t be a problem. The very next day is a new day. If the District screws up the day after the agreement is signed, and you didn’t waive prospective claims past the date of execution of the agreement (which some districts will try to trick parents into agreeing to, so be careful on that one), then a whole new claim has arisen that had nothing to do with the issues that you settled the day before. Generally speaking, you shouldn’t be waiving claims for things that happen after you’ve signed the settlement agreement, only whatever happened before and up to the date that everybody signed it – but, again, every situation is different and I can’t really tell you what’s appropriate for your given circumstance.

      If there isn’t enough information in your child’s records to understand how the data was collected or why things were changed, these are substantive issues that you would most likely have to address by questioning your witnesses from the District in hearing. The reason the information isn’t in the record is probably because data really wasn’t collected or sufficiently interpreted. I’m not sure what a Prior Written Notice (“PWN”) would accomplish at this point. I think maybe you’re using the wrong term. It can’t be “prior” if it comes to you after the fact.

      There is nothing, however, that prevents you from writing the District now, requesting clarification regarding the questions you have about the data and changes, and asking them to respond in writing within a specified number of days that allows you enough time before your mediation date to review their response. If they fail to respond or their response fails to answer your questions, it’s another piece of evidence for hearing. Be sure to send your letter Certified mail so you can track it online for proof of delivery; otherwise hand-deliver it to the District offices and have the receptionist stamp a copy of it “Received” with the date. You want to be sure to establish when they got it relative to the deadline you’ve given them to respond to it and afford them a reasonable amount of time to get the information that you’ve requested. Given that it’s summer right now, and the data may have been informally collected by staff who are on summer break at the moment, I don’t know how that would work out for you.

      Nonetheless, if you do make the request, the record would be made that you asked for the information. If they fail to provide it in response to your request and you end up in hearing, if they then present it as evidence, they’re going to have to explain why they didn’t provide it to you sooner in response to your request and instead waited to share it with you in hearing. Technically, the data collected is likely part of your child’s student records and is bound by the 5-day timeline per EC Sec. 56504. As Ricky Ricardo used to say, they’d have some “splainin” to do.

      It’s more likely the case that your issues with vague data and service changes being made for unclear reasons are substantive issues that would be subject to scrutiny in hearing, should your case go that far. I’ve seen plenty of situations where there was no data and the teachers and related services personnel were just “ball parking” the percentages of accuracy on the goals, which didn’t make any sense based on how the goals were written in the first place. That happens all the time, unfortunately. If this is what is happening in your case, then it would go to show that either the goals were not written in a measurable manner in the first place and/or the education rendered failed to comport with the IEP.

      The lack of measurable annual goals is a procedural violation, so you would have to show how the lack of measurable annual goals deprived your child of meaningful educational benefit. If the education rendered failed to comport with the IEP, you would still have to establish that it resulted in lost educational benefit, though I’ve seen case law (which is collectively very inconsistent regarding many different substantive issues) in which a finding that a FAPE was denied was based purely on the fact that the education rendered did not comport with the IEP – that is, the District failed to deliver what the IEP described and that automatically cause a FAPE to be denied.

      This is all my opinion as lay advocate and paralegal. To the degree that you can put it to use, I hope it helps. With all of this said, I strongly recommend that you consult with an attorney about all of this. It’s complicated and involved and it’s easy to accidentally shoot yourself in the foot if you’re not familiar with all of these different processes and procedures.

      Anne

  2. It’s good to hear the very next day is a new day. They have some splainin to do, that’s hilarious! Thanks. DD had her triennial assessment and we felt we needed to do a state complaint and ask for an IEE. We requested the IEE right away and the district is taking us to due process to defend their assessments- we’re trying to figure out if that means we can’t file the state complaint we were working on after the reassessment meeting.

    DD’s pediatrician did an exam, strongly suggested an APE assessment, and one of the IEP team members sent an email saying she felt DD could access a kindergarten PE program so APE was not necessary. We wrote it on the assessment plan when we signed it along with discussing it in person, but nothing ever happened. Can we ask for prior written notice on why they didn’t choose to assess that area? There were several things like that and we honestly just need to know why and what they are seeing or not seeing.

    1. I think the question regarding the APE assessment is a matter of “Who at the District is qualified to refute the recommendations of a medical doctor if he has medically identified a condition that has the potential to negatively impact her receipt of any aspect of her education?” Not than an MD can make educational recommendations any more than a teacher can make medical recommendations, but if he’s identified a form of impairment from a medical standpoint, it’s no longer a question of whether or not your child is impaired – it’s now a matter of the degree to which the identified impairment impacts her educationally. That makes it an area of suspected disability that they not only failed, but refused, to assess.

      You have every right to ask why they denied the APE assessment. Just because someone within the District said they didn’t think she needed APE is an inadequate explanation. They basically reached a determination regarding the content of her IEP without conducting assessment in a suspected area of disability. When they refuse to assess, it’s almost the same thing as if they’d done a poor assessment and arrived at an erroneous conclusion or their findings were inconclusive. The IEP team still doesn’t really know whether she needs the APE support or not. Assessment is the process by which that determination is made. It’s not like APE assessments cost a bunch of money, either. Denying an APE assessment after a medical doctor has identified impairment that could potentially warrant APE is pretty dumb on the part of the District, in my opinion. It wouldn’t cost a fortune to do the APE assessment and either rule out or determine the need for APE, depending on what the assessment results reveal. At this point, you’re probably entitled to an IEE in APE, as well.

      The District should have provided PWN with a sufficient explanation at the time they denied the assessment. Even though you as a parent can’t add additional assessments to the assessment plan that weren’t originally offered by the District and have the District bound by what you added, your written addition of those assessments to the assessment plan served as a written request that they be done and the District had 15 calendar days to respond to your request with either an assessment plan or a denial letter. You’re saying they ignored it altogether, which is definitely a procedural violation.

      That said, however, because due process has been initiated, any compliance complaint you would file at this point would not be investigated for the reasons I explained before. CDE won’t investigate a procedural violation while due process is pending, regardless of who filed. I apologize before for presuming that you were the filing party. Parents usually are the ones initiating due process.

      The good news, sort of, is that because the District filed against you, it technically bears the burden of persuasion with respect to what is being contested. Unfortunately, with OAH that doesn’t really mean a whole lot and it’s still going to be up to you to show the questions that were not answered by the District’s assessments. If you can do that, then the District can’t successfully argue that its assessments were sufficient.

      Some school districts don’t grasp the concept that just because the data they did collect was valid, that doesn’t mean the assessment overall was sufficient. If there were holes in their data collection, if they neglected to measure an area of need, if they failed to assess a particular concern that has bearing on your child’s receipt of a FAPE, then the assessment is flawed because it’s incomplete. That doesn’t call the validity of the data they collected into question and you can say, “We’re not arguing with what you did do; we’re saying you didn’t do enough and you’ve left the IEP team without all the information it needs to develop an appropriate offer of FAPE in all areas of educational need.” The issue for hearing essentially becomes “failure to assess in all areas of suspected disability.” You are due an IEE because the District’s assessment was inadequate and failed to provide the IEP team with all the information it needs to develop a FAPE for your child.

      The fact that the District filed against you doesn’t prevent you from responding and asserting issues that the District didn’t raise itself. You can specify issues for hearing, as well, either by responding with them or counter-filing your own due process request and moving to consolidate the cases. That’s what the District should really be worrying about, at this point. If you have additional claims beyond just the IEE, then by filing against you, the District has opened the door for you to tell the whole, big story and show all of the other FAPE claims you have – but if you don’t name them as issues for hearing, the ALJ can’t award remedy for them.

      This is why I suggested previously that you work with an attorney. You could inadvertently close the door on pursuing those claims later on by going to hearing now on the issue raised by the District without mentioning them, particularly if they involve many of the same facts and pieces of evidence that would be presented in the current matter. You never want to do anything that could cause your claims to be forfeited without getting whatever remedy you can to make up for them, generally speaking.

      One of the tools in your toolbox, as an unrepresented parent in particular, is if the case doesn’t settle in mediation, you can request a pre-hearing telephonic conference with OAH to clarify the issues for hearing. The ALJ will conference call you in along with someone from the District, possibly some administrators and their lawyer, and help frame the issues for hearing in advance of the actual hearing date.

      The ALJs understandably hate going into hearing without understanding what the issues are and are happy to help frame them in advance because it’s the issues that they are trying. They are triers of fact. They are supposed to examine the facts and how the laws apply to them in order to answer the questions raised in the form of due process issues. Therefore, anything to which you are seeking resolution must be framed as an issue for hearing.

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