or substantiated and will identify the corrective actions required (if any). Alleged violations must have occurred within one year of the date the complaint is received by the ODE. Due Process Hearing Requests A parent may file a DPHR alleging violations of the IDEA and/or Section 504. The statute of limitations is significantly longer than for an ODE complaint; parents must file a DPHR within two years of the date they knew or should have known a violation occurred. A DPHR may be litigated by a pro se parent, but I do not recommend that. The rules around bringing a DPHR through to a final order are complex. For example, the exchange of exhibits and witness lists to the opposing counsel five days prior to the hearing requires an understanding of which documents are critical to each allegation in the complaint and which witnesses are necessary to introduce the evidence in the hearing. State or Federal Court An allegation of violation under Section 504 may be brought directly to State or Federal Court. If the legal claim relates to violations of the provision of a free and appropriate education under IDEA (and to some extent under Section 504), the claims must be exhausted in a due process hearing. If the claim relates to violations of Section 504 seeking damages not available under the IDEA, the exhaustion requirement does not apply. Perez v. Sturgis Pub. Schs., No. 21-887 (Mar. 21, 2023). Our Journey of Discovery Williams engaged in both types of legal action as she sought appropriate special education and related services for her child. Over the years I spent in law school between 2013 and 2017, Williams filed two ODE state complaints, two due process hearing requests, two Oregon District Court filings (including a petition for attorney fees and costs) and an appeal to the Ninth Circuit Court of Appeals. Williams filed her first ODE state complaint on her own, pro se, and engaged the services of attorney Melissa Wischerath for subsequent legal actions. ODE State Complaint #1: On December 5, 2013, Williams filed a due process hearing request. This complaint alleged violations of the IDEA, including failure to identify and evaluate a student for special education, failure to conduct initial evaluation, and failure to provide an initial IEP and provide a Free Appropriate Public Education (FAPE). The department substantiated the first two claims, and reasoned that, because the district had not evaluated the student, it could not have implemented an IEP. Thus, the third claim was not substantiated.9 ODE State Complaint #2: On November 19, 2014, Williams filed a second ODE complaint, alleging violations related to IEP implementation, including staff responsible for implementing the IEP did not have a copy of the document at the start of the year and did not provide the services prescribed in the IEP. The district did not contest four of the parent’s six allegations. ODE did not substantiate the remaining two claims. The ODE, the district and the parents entered into a stipulated corrective action agreement. The department issued its findings and order on January 16, 2015, describing corrective actions and timelines.10 ODE Complaint #3: On December 21, 2015, Williams filed a third ODE complaint.11 The department issued its findings and order on March 9, 2018, substantiating the parents’ claim that the district improperly changed their child’s placement without holding the required meeting to determine placement, placed the child in a setting that was not in the least restrictive educational environment and without basing the placement on the child’s current IEP, did not place the child in a location as close as possible to the child’s home, did not consider the potential harmful effects on the student or the quality of the services in the setting and did not provide needed modifications.12 Due Process Hearing Request #1: On September 26, 2014, Williams and Wischerath filed a due process hearing request, alleging the school district violated several requirements of the IDEA. At the outset of a four-day hearing, the district stipulated to several allegations. The remaining issues presented at the hearing were allegations the district denied the student a FAPE for two school years; failed to evaluate the student as a student with potential disabilities; failed to recognize excessive absences as a manifestation of the child’s disabilities; and denied parents an opportunity to meaningfully participate in the child’s education. The administrative law judge issued a final order on May 11, 2016, finding the student’s excessive absences were a manifestation of her disability and the district failed to provide FAPE for two school years, awarding 414 hours of compensatory education to the student. Due Process Hearing Request #2: On August 31, 2015, Williams and Wischerath filed a second due process hearing request.13 I served as an expert witness for the student. The hearing was held over four days in March 2016 and the final order was issued on May 11, 2016. The administrative law judge found multiple violations of the IDEA. One remedy ordered was that the district provide 175 hours of compensatory education prior to the student’s graduation from high school (March 2017). First District Court action: Wischerath filed a complaint in the Oregon District Court, alleging discrimination under Section 504 against the school district and retaliation under Section 504 against the school district and the education service district.14 Wischerath additionally alleged a claim of fraudulent misrepresentation and concealment under state laws. The magistrate judge dismissed all claims with prejudice; the district court judge adopted the magistrate judge’s findings and order. Students With Disabilities continued from p. 33 34 Trial Lawyer | Summer 2024
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