IEP vs DUE PROCESS

IEP Process vs Due Process and IDEA Compliance 

 
The due process system has limited ability to improved IDEA compliance.  Parent access is often limited to due process due to associated costs.  Only 3% of school district have disputes that result in litigation, 51% have not been involved in SE litigation or due process in the past 5 years and 94% of school districts nationally have had no due process.  Thus the education advocate’s focus needs to be on the IEP process that has competency based outcomes and gets a FAPE for a child.  

Safeguarding special education rights for children at the parent level involves 10 processes.

Education advocates are involved in 9/10 of the following:

      
                                                                                                                                    Education Advocates        Lawyers
1)   Access to and understanding of procedural safeguards information                            X                           X

2)   Educationally based needs identification                                                                            X                         

3)   Initial IEP development                                                                                                           X                         

4)   Monitoring the use of RtI and research based interventions and programming         X                         

5)   Ongoing IEP development - LRE and SDIs based on data                                                 X                         

6)   Transition Planning                                                                                                                 X                         

7)   Competency-Based / Outcome-Based progress monitoring                                            X                          

8)   Complaints to the state department of education                                                            X                          

9)   Mediation                                                                                                                                 X                          

10)   Due process and appeals of due process decision at the state or federal level                                         X


National Data on Due Process Occurrence:

·      Only 3% of school districts had multiple disputes that resulted in due process litigation.

·      51% of school districts said they had NOT been involved in special education litigation or due process in the past five years.

·      The 8 lowest hearing incidence states combined averaged fewer than 3 hearings per year.

·      Nationally 56% of ALL adjudicated hearings were in only 2 states (NY & NJ).

       Nationally 80% of all adjudicated hearings were in only 8 states.

             (24% of all adjudicated hearings were in the next 6 highest states combined)

·      Nationally only 20% of all adjudicated hearings were in 42 states.
       (American Association of School Administrators AASA - National Survey on IDEA Due Process System 2016)

·       Only 5/10,000 IDEA qualified students ever request a due process hearing.
        (GAO Report)

·       94% of school districts have NO due process hearings.
         (U.S. Department of Education www.ideadata.org/ TABLES32ND/AR 1-1.htm)

·      TASH, found in 2011, that 36% of families, with children with disabilities, earn less than
        $25,000 a year and over 66% earn less than $50,000 a year. They cannot pay for lawyers
        or expert fees - which are non-recoverable. (Mar 29, 2011, tash.org)

·      The U.S. Congress reported that only 0.3% of special education spending is spent on
       mediation, due process, or other court cases. (150 Congressional Record s.5351)  

      

The Average Due Process Fees (AASA)

Legal fees for a district attorney involved in a due process hearing                       $10,512.50

Districts compelled to compensate parents for their attorney’s fees averaged         $19,241.38*

The verdict expenditures associated with the due process                                    $15,924.14

                                                                                                                     $45,678.02

*This total does not represent districts where due process parent attorney

  fees can be $75,000.00 or higher

 

Districts that settle with a parent prior to the due process hearing, the average settlement costs were $23,827.34. (AASA)

 

In 2010, 95% of all U.S. students with disabilities were educated in public schools as compared 20% to 1970. (AASA)

.

Only 3% of districts said they had multiple due process cases, yet the number of federal special education decisions has doubled in 10 years.

American Association of School Administrators, April 2016, Rethinking Special Education Due Process



Senator Kennedy, in 2004, stated,

“Most parents don’t have access to any attorney, or must rely on low-cost legal aid.  And data from surveys shows that even this help is in short supply…  Those parents who have the courage to go it alone face schools that are well represented.  State data shows that schools were much more likely to bring an attorney to a hearing than parents were.”        

150 Cong. Rec. S5351 (daily ed. May 12, 2004)

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