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Chapter 1 — History of Special Education - Chapter 2 — The Process of Special Education and Law of Special Education Litigation Issues
- I. [2.1] Pre-K Education
- II. [2.2] Child Find
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III. Eligibility - IV. Evaluation
- V. Individualized Education Program Design
- [2.17] Components of Individualized Education Program and Individualized Education Program Design Requirements
- Understanding a Free Appropriate Public Education in the Context of Individualized Education Program Design
- [2.18] Reasonably Calculated To Confer a Substantial Benefit
- [2.19] Complying with State Standards
- [2.20] Nonacademic Standards (Social and Emotional Needs, Extracurricular Activities, and Functional Needs)
- [2.21] Using Evidence-Based Methods
- [2.22] Consideration of All Relevant Data Including Evaluations
- [2.23] Special Factors
- [2.24] Members of the Individualized Education Program Team
- [2.25] Areas of Need
- [2.26] Present Levels of Performance
- [2.27] Goals
- [2.28] Progress Reports and Benchmarks
- [2.29] Accommodations
- [2.30] Related Services
- [2.31] Transition Plan
- [2.32] Extended School Year Services
- [2.33] Placement
- [2.34] Least Restrictive Environment
- [2.35] Therapeutic Environments
- Aspects of Individualized Education Program Design Not Explicitly Set Out in Statute or Regulation
- [2.36] Substantive vs. Procedural Violations of the Individuals with Disabilities Education Act
- [2.37] Safety Considerations
- [2.38] Methodology
- [2.39] Previous Performance and Whether the Individualized Education Program Actually Produced Progress
- [2.40] Implied Components to an Individualized Education Program
- [2.41] Parental Input
- [2.42] Need To Revise an Individualized Education Program
- VI. [2.43] Placement
- [2.44] Definition of “Placement”
- [2.45] The Law of the Option on the Continuum of Alternative Placement Options
- [2.46] Relation of Placement and Program to Location of Services
- [2.47] District Programs Cannot Drive Individualized Education Program Team Decisions if District Programs Cannot Meet a Child’s Unique Educational Needs
- [2.48] Inappropriate Location of Services as a Violation of the Individuals with Disabilities Education Act
- VII. Individualized Education Program Implementation
- VIII. Expedited Hearings
- [2.52] In General
- [2.53] Understanding Placement in the Expedited Disciplinary Hearing Context
- [2.54] District Authority To Discipline Children with Special Needs
- [2.55] Decision To Change a Child’s Placement as a Result of Disciplinary Issues and the Need for a Manifestation Determination Placement
- [2.56] Removal for a Pattern of Disciplinary Removals
- [2.57] Interim Placements for Special Circumstances
- [2.58] Interim Placements Ordered by a Hearing Officer
- [2.59] Hearings for Disciplinary Matters and Remedies for Violations
- [2.60] Disciplinary Removals Extend to Children When an Evaluation Has Been Requested
- Chapter 3 — Special Education Dispute Resolution Procedures
- I. [3.1] Introduction
- II. [3.2] State Complaint
- III. [3.3] Mediation
- IV. [3.4] Due-Process Hearing
- [3.5] Requesting a Due-Process Hearing
- [3.6] Appointment of the Hearing Officer and Substitution
- [3.7] Response to Due-Process Complaint Notice
- [3.8] Sufficiency of Due-Process Complaint Notice
- [3.9] Amending the Due-Process Complaint Notice
- [3.10] Statute of Limitations
- [3.11] Resolution Meeting/Mediation
- [3.12] Due-Process Timelines
- [3.13] Prehearing Conference
- V. [3.14] Appropriate Standard Practices
- VI. Issues of Proof at Hearing
- [3.15] Who Bears the Burden of Proof?
- Ways To Demonstrate the Success or Failure of an Individualized Education Program or the Provision of Special Education Progress
- [3.16] Present Levels of Performance
- [3.17] State Standards (Benchmarks)
- [3.18] Norm-Based and Criterion-Based Assessments
- [3.19] Evaluations and Reevaluations
- [3.20] Observations
- [3.21] Failure To Meet Goals
- Evidentiary and Civil Procedure in Presenting the Case Before the Hearing Officer
- [3.22] Rules of Evidence and Procedure
- [3.23] Medical vs. Educational Diagnoses and Determination of Placement
- Use of Experts
- [3.24] Qualifying Experts and Eliciting Expert Testimony
- [3.25] Obtaining an Independent Evaluation from the Hearing Officer
- [3.26] Reasons for an Independent Evaluation at District Expense
- [3.27] Hearing Officer May Be Able To Make Expert Inferences
- [3.28] Laying Foundations for Expert Testimony
- [3.29] Subjects of Expert Testimony
- [3.30] Reasonable Degree of Professional Certainty
- [3.31] Specific Cases That Require Expert Testimony
- [3.32] Record Reviews vs. Full Independent Evaluations
- [3.33] Official Notice
- [3.34] Hearing/Decision/Clarification
- Chapter 4 — Remedies
- I. [4.1] Remedies Based on Equitable Considerations
- II. [4.2] Maxims of Equity and the Snapshot Rule
- III. [4.3] Good Faith of Parties
- IV. [4.4] Focus of Due-Process Litigation
- V. [4.5] Individualized Education Program Change
- VI. [4.6] Private Placement or Location of Services
- [4.7] Consideration of Private Placements or Locations of Services at Individualized Education Program Meeting
- [4.8] Notice of Intent To Enroll in a Private Placement or Location of Services; Tuition Reimbursement
- [4.9] Private Placement While Child Is Enrolled in Public School or Not Enrolled in Any School
- VII. [4.10] Compensatory Education
- VIII. [4.13] Changing Grades, Ordering Graduation, and Expunging Records
- IX. [4.14] Additional Evaluations
- X. [4.15] Attorneys’ Fees and Costs
- XI. [4.16] Individualized Education Program Meetings
- Chapter 5 — Practice Tips
- I. [5.1] Understanding Reasonableness
- II. [5.2] Proving Harm for Loss of Educational Benefit or Interference with Parental Rights
- III. [5.3] Litigating on a Budget: Reviewing Records, Bifurcating Hearings To Order Evaluations, Obtaining Hearing Officer Ordered Evaluations
- IV. [5.4] Compensatory Education Plans
- V. [5.5] Telephone Testimony
- VI. [5.6] Decisions Based on Substantive Grounds
- VII. [5.7] Litigating Complex Cases, Breaking Down Cases, and Litigating According to the Process for Providing Special Education
- VIII. [5.8] Profoundly Disabled Children (Medically Fragile, Severe Intellectual Disabilities)
- IX. [5.9] Compensating for Lack of Discovery Practice in Special Education Due-Process Litigation
- X. [5.10] Access to Records
- Chapter 6 — Miscellaneous
- I. [6.1] Enforcing Final Decision of the Hearing Officer
- II. [6.2] The State Complaint System
- III. [6.3] Children in Private Schools
- IV. [6.4] Residency Issues in Special Education
- V. [6.5] Transfer of Rights
- VI. [6.6] Settlement Agreements
- VII. [6.7] Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act
- VIII. [6.8] Protections for Disabled Students from Other Bases for Discrimination Other than Disability
- IX. [6.9] Exhaustion of Individuals with Disabilities Education Act Remedies for Other Federal Statutes Including the Americans with Disabilities Act
- X. [6.10] Stay-Put Injunctions
- XI. [6.11] Statute of Limitations and Equitable Tolling
- Phil Milsk
Phil Milsk
Phil Milsk is the Owner of the Law Offices of Phil Milsk, in New Lenox, where he focuses his practice on governmental relations and education. He is a member of the Illinois State Bar Association’s Education Law Section Council and its Standing Committee on Disability Law as well as the Illinois Task Force on Employment and Economic Opportunities for Persons with Disabilities. Mr. Milsk received his J.D. from DePaul University College of Law and his B.A. from University of Illinois-Chicago.
- Joseph P. Selbka
Joseph P. Selbka
Joseph P. Selbka is Income Partner at Pluymert, MacDonald, Hargrove & Lee, Ltd., in Hoffmann Estates, where he concentrates his practice on civil litigation (including school and municipal litigation), as well as employment litigation, real estate litigation, contested trusts and estates, and commercial litigation. He is a member of the Illinois State Bar Association, Chair of the DuPage County Bar Association’s School Law Committee, and a member of the Arlington Heights Zoning Board of Appeals. Mr. Selbka received his B.A. from the University of Illinois, his J.D. cum laude from the University of Minnesota Law School, and his M.P.A. from the University of Illinois at Chicago, where he was a member of Pi Alpha Alpha Honors Society. He was an adjunct lecturer at the University of Illinois at Chicago College of Urban Planning and Public Affairs from 2003 – 2016, where he taught courses related to the legal context of public administration.
- Sabrina Shafer
Sabrina Shafer
Sabrina Shafer, Esq., is an attorney, in Chicago, and focuses her practice on special education. She is a Board Member of the Special Education Advocacy Firm (2003 – present). Ms. Shafer is also a CALI Award winner in the categories of Special Education, Advanced Litigation, and Legal Writing. She also spent eight years as a foster parent/host with Safe Families for Children. Ms. Shafer earned her B.A. from Lake Forest College and her J.D. magna cum laude from Loyola University Chicago School of Law.
Special Education Due-Process Litigation 2022 Edition
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