Sometimes, a child's IEP does not provide what a child needs in school. This can happen for a lot of different reasons. Sometimes, the child's needs are out of line with what a school typically provides. Other times, the school may not fully understand how to help a child. And on some occasions, the members of the IEP team are simply not the people who can say yes. When this happens, parents face a difficult choice to either continue to work through the IEP team or to use the dispute resolution process that the federal government has made available to parents of children with disabilities in government-funded schools. That dispute resolution option involves filing a due process complaint. Parents may file a due process complaint when they disagree about the adequacy of some component of their child's special education plan, and when disagreements cannot be resolved at the IEP table. A due process complaint is a written complaint that describes why the parent believes their child is not being provided a Free, Appropriate Public Education and asks for remedies to fix it.

Federal law gives very specific rules about how due process complaints work. Once a due process complaint is filed, the complaint is assigned to an impartial hearing officer, who will preside over a due process trial if the case does not settle in the resolution phase. Under federal law, when parents file a due process case against a school district, the district must offer an opportunity to resolve the dispute in a "resolution" session. Here, the district will typically make an offer to resolve the dispute in exchange for the parents dropping the due process claim. Negotiations may continue back and forth for several rounds. If an agreement is reached that parents are satisfied with, the parents will withdraw their complaint after all parties sign a resolution agreement. If agreement is not reached, the case will proceed to trial, although efforts to resolve the case by negotiation may continue.

A due process hearing is essentially a mini-trial, except it is in front of an impartial hearing officer instead of a judge or jury. Both sides can admit evidence and call and cross examine witnesses. The hearing will begin with opening statements by both sides. This will be followed by witness testimony. In Nevada, the school district will typically call its witnesses first, because the district has the burden of proof. After each witness, the parents' attorney will cross examine the school district witnesses. Once the school district has called all of its witnesses, the parents get a turn to call witnesses as well. Usually, a parent will testify, as well as any outside providers or evaluators. Sometimes, an expert witness will be needed. Testimony should include details about the violation, as well as testimony on the appropriateness of the remedy being sought. The school district attorney may also cross examine the parents' witnesses. Once the witness testimony is completed, the parties will each give closing statements. A typical due process trial takes about 2-4 days, although this can vary. The hearing officer will later issue a written decision about the case.

Having expert witnesses who can support your case is very important in a due process hearing, although this does depend on the nature of the complaint. Some types of complaints can be resolved without an expert. An expert witness is needed specifically if you need to show that the school's IEP did not offer your child a Free Appropriate Public Education. Without your own expert, you will be dependent on the testimony of school district witnesses, who will likely not back up your claims. An expert witness is also needed to show the appropriateness of your proposed remedy. Without this, you run the risk of winning the due process claim only to be assigned a remedy that does nothing to help your child, such as more hours of the same failed educational approach. Fortunately, there are many types of people who can serve in this role. An expert does not need to have a Ph.D. Types of witnesses that could help proving your case include independent evaluators, private tutors, and outside service providers such as BCBAs, speech pathologists, occupational therapists, etc.

If you lose at due process, you will need to assess the reasons why you lost prior to making a decision about how to proceed. Did the hearing officer make a legal error, or did the hearing officer make a clear mistake about the facts on the record? If you believe the hearing officer made a significant error of law or fact, you may decide to appeal your case. Nevada is a two-tier state, meaning your case goes first to a hearing officer and then is appealed to a state review officer. The decision of a state review officer may be appealed to federal district court. Generally speaking, the review officer will give deference to the reasoned opinions of an impartial hearing officer. So to win an appeal, the officer needs to have made a mistake in your case that would have affected the outcome. Even if the state review officer would have made a different call, the review officer will not likely reverse a decision in the absence of an actual mistake by the hearing officer.

Mediation is an alternative way to resolve a complaint than just having a resolution meeting with the district. That is because mediation is more structured, and the presence of a mediator can keep discussions on track. To get to mediation, both sides must agree. A request can be submitted to the state for mediation, and the state will assign a mediator once all parties agree.

Yes. Due process is a legal proceeding that culminates in a trial. Very few parents will prevail at due process without a lawyer due to the complexity of the proceedings. Some parents do resolve their cases prior to hearing without a lawyer. But parents who represent themselves at due process are less likely to get meaningful remedies for their children in the resolution process. A family is more likely to get a meaningful remedy when a lawyer is helping in the case. Cost should not be a factor when hiring an attorney for due process, especially if parents have a strong claim. That is because many lawyers will take due process cases on a sort of contingency basis because of federal fee-shifting rules. Under federal law, attorney fees are reimbursable to parents when parents prevail at a due process hearing. That is because children are entitled to a FREE Appropriate Public Education. Hiring an attorney to represent you at due process is generally affordable due to these provisions.

A student is expelled in Nevada when they are removed from their school for disciplinary reasons for more than a semester. That is in contrast to a suspension, where a student is removed for a semester or less. Students as young as 8 years old may be expelled from school in Nevada. One myth about expulsions is that expelled students are not entitled to any education at all during their expulsion, and that expulsions are permanent. In fact, expelled students are typically able to attend some form of schooling during the period of expulsion, either at another public school, a behavior school, or an online school, depending on the circumstances.

In Nevada, children may be expelled from school for a range of conduct. That conduct includes but is not limited to: * Battery on students or staff * Possession of Weapons * Drug distribution or possession * Sexual Assault * Arson or Vandalism * Racial Bullying * Fighting * Gang involvement * Disrupting campus or being a habitual discipline problem In Nevada, students as young as eight years old can be temporarily expelled from school, with protections for such students fading as they get older. More serious infractions, such as weapons offenses, may carry a mandatory expulsion recommendation. For less serious infractions or for younger students, expulsion is often discretionary but not required.

The first signs that a school is moving toward expulsion are easy to miss, because nearly every expulsion will start with a suspension. Many students are suspended from school and most are allowed to come back. But for some students, a suspension is the first stop on a road toward expulsion. In the Clark County School District, parents will typically get a Notice of Suspension and should read it carefully to determine whether the notice indicates expulsion is also being recommended. From that initial Notice of Suspension, parents must be prepared for a long period of uncertainty. The process for expelling a student is lengthy, and a student facing expulsion is likely to be out of school for a significant amount of time even if an expulsion recommendation is ultimately reversed. It is important to get legal help as early as possible in this process before the school and district become invested in an expulsion decision. Within three school days of a suspension that carries a possible expulsion recommendation, the principal or someone representing the principal must conduct a hearing with the student and the student's parent to discuss the incident. This "hearing" may feel very informal. But it is extremely important. This is a parent and child's first chance to provide information that could persuade a principal that expulsion is not warranted. At the end of the meeting, the principal will inform the parent at least orally whether they are proceeding with expulsion. If the principal recommends expulsion, the parent must be given written information describing due process procedures available to challenge the expulsion. Once a parent gets written notice of the district's decision to proceed with expulsion, the parent has 14 days to notify the district that it wants to contest the expulsion. Once the parents do that, the district then has another 14 days to schedule an expulsion hearing panel. If the expulsion is upheld, the parent then has 14 days to submit an appeal to the school board's Expulsion Review Board, where a panel of three members will oversee an evidentiary hearing regarding the expulsion. Under certain circumstances, decisions of both the Expulsion Hearing Panel and the Expulsion Review Board may be challenged in state or federal court.

Students with disabilities who are facing discipline have special protections under federal law designed to ensure that they are not being punished for behavior that is related to their disability. That is because disabled students are disproportionately disciplined in schools across America compared to students without disabilities. When a student with an IEP is facing discipline that would exclude them from school for a significant amount of time, the school must hold a Manifestation Determination Review to investigate the relationship between the student's behavior and the student's disability. These protections kick in once a student has been excluded from school for 10 cumulative days in one school year. Students with a 504 plan are entitled to similar protections, and in Nevada the procedure is identical to the Manifestation Determination Review afforded students with IEPs. Some students who are not yet identified as students with a disability may still be protected in discipline proceedings. This may happen when a student was undergoing evaluation at the time of the alleged infraction, or when the school knew about the disability but had not taken appropriate action to evaluate the student.

A Manifestation Determination Review, or an MDR, is a meeting to determine whether a child's behavior was a result of either the child's disability or the school's failure to follow the child's IEP or 504 plan, including any related behavior plan. At the meeting, the team will discuss the answers to two questions: 1) Was the conduct in question caused by the student's disability, or did the conduct in question have a direct and substantial relationship to the student's disability? 2) Was the conduct in question a direct result of the school district's failure to implement the IEP? If the answer to EITHER of the two questions is YES, then the behavior will be deemed a manifestation of the child's disability, and discipline will stop. The child will be able to immediately return to school, with the exception of cases involving weapons, drugs, or violence causing significant bodily injury. Furthermore, if the behavior was found to be a manifestation, the school must conduct a Functional Behavior Assessment of the child if it has not already done so, and must create a Behavior Intervention Plan for the child to help the school prevent the behavior going forward. If the answer to BOTH questions is NO, then the school may continue to discipline the child just as they would discipline a non-disabled child for the same conduct. Parents who believe the Manifestation decision was erroneous may challenge that decision by filing for due process, which will be conducted on an expedited basis.

If a child's behavior is NOT determined to be a manifestation of the child's disability or of the school's failure to follow a child's IEP, then the school may discipline the child just as it would discipline a non-disabled child in a similar situation. That means a child may be further suspended or even expelled from school. But the school dos have limits, even in this situation. That is because the school is still required to provide a Free, Appropriate Public Education to children with IEPs who are facing discipline. That may mean the district will have to consider whether a child's IEP can be implemented in whatever setting the child is sent to, such as a behavior school. In such a setting, the school remains responsible to provide a FAPE. Additionally, the decision of a Manifestation Determination Review hearing may not be the last word on the matter. A parent seeking to challenge a manifestation decision may do so by filing a due process complaint. A due process filing to challenge a manifestation decision will trigger an expedited due process hearing with a shortened timeline. That means that a hearing must be held within 20 days of the filing, and the hearing officer will have 10 days after the hearing to issue a written decision.