We are going to Due Process

[JJJ]

Our school is such a joke. We spent over 3 hours in another IEP meeting and the entire last hour was them threatening me. I was so livid. We suspended the IEP meeting and will reconvene in January. At that time if I haven't "changed my mind", they will declare a unilateral IEP and I will need to file for due process and a stay put order. While I think the Due Process steps will take until the end of the school year and I do hope to win (cause I am right!!) our State is infamous for schools always winning at Due Process. I have no idea what I am going to do for her for 8th grade if I lose -- their offered placement is completely unacceptable.

 

[slsh]

JJJ - I am so sorry to hear this. Unfortunately, you have a realistic grasp of what you're up against in this state. I hope you've got a good atty.

Sending you lots of strength because I know what an unbelievably draining experience this is.

I know Martie/Sheila pipe in, but I'm not recalling anything in IDEA that states a school can do a "unilateral" IEP and change placement (unless it's disciplinary) without the team consent. I would think that SD would have to file due process to change placement for nondisciplinary reasons, not you. Stay-put rule is already in place.

 

[JJJ]

Sue,

She is currently in placement (a) they want to change her to placement (b). They have all school employees agreeing on (b) and I am insisting on (a). Can they say that the team decided -- even though I as a member of the team and say no -- to change placement to (b)? Then I need to file DP. Or must they file DP to force a change???

 

[JJJ]

Oh, and it is NOT disciplinary.

 

[slsh]

Since it's not a disciplinary change of placement, they absolutely positively *cannot* change her placement without approval of team.

Some quotes from IDEA:

``(e) Educational Placements.--Each local educational agency or
State educational agency shall ensure that the parents of each child with a disability are members of any group that makes decisions on the educational placement of their child."

Unilateral change of placement by SD but this *only* pertains to discipline so it does not apply here:

``(A) Case-by-case determination.--School personnel
may consider any unique circumstances on a case-by-case
basis when determining whether to order a change in
placement for a child with a disability who violates a
code of student conduct.
``(B) Authority.--School personnel under this
subsection may remove a child with a disability who
violates a code of student conduct from their current
placement to an appropriate interim alternative
educational setting, another setting, or suspension, for
not more than 10 school days (to the extent such
alternatives are applied to children without
disabilities).

ARGH - ISBE is so helpful - all they say about placement during DP is that the statute is repealed... let me slog some more...

Ahhhh found it in IDEA.

Sec. 300.518 Child's status during proceedings.

(a) Except as provided in Sec. 300.533, during the pendency of any administrative or judicial proceeding regarding a due process complaint notice requesting a due process hearing under Sec. 300.507, unless the State or local agency and the parents of the child agree otherwise, the child involved in the complaint must remain in his or her current educational placement.

So in my lay opinion, placement cannot change without *team* agreeing. *Team* doesn't agree so SD can just go right ahead and file DP because you don't have to. You've already got the placement you want and team at some point agreed to it.

Stay put rule is in effect.

Word of warning though - I have dealt with some really low SD staff and attys who stunned me at their complete lack of ethics. I would expect harrassment and retaliation (unprovable) to continue and possibly intensify. The *only* way they can legally change placement is if they get her on a conduct violation. JJJ, I'm truly sorry but I would watch carefully.

 

[JJJ]

It is a moot point now as she is back in the psychiatric hospital and it looks unlikely that she will return to school this year.

 

[JJJ]

They sent me a Parent's Rights Booklet (at my request). It was last revised in 2001 --- shouldn't there have been another revision dated AFTER IDEA 2004 considering how many changes that law brought???

 

[Martie]

Thanks Sue, for handling this one so well.

JJJ: in IL SDs win 80% of the time---about 50% when the parent is represented by a good school law att'y. Stay put is in effect and I agree with Sue that the SD SHOULD have to take you to DP to change the placement over your objection. However, schools have been known to do things such as call the police if a child shows up after a unilateral SD decision that he/she no longer "belongs" there.

I was given an hour to pick up ex-difficult child or the police would be called, and I was in Chicago's Loop when I got that call (from the North Shore). Further ex-difficult child was not presenting a discipline issue, it was a mental health issue.... I called my attorney FIRST not last and they then decided to hold ex-difficult child at the school until I made it there about 90 minutes later than the hour they gave me. Moral of this story, other than ex-difficult child never again attended public school, is that despite the law, schools in certain states do what they wish to and in IL, it is with ISBE's covert blessing.

I'm sorry that all of the above has become moot due to the phospitalization.

I hope the New Year brings better things for you and difficult child.

Martie