Special Education Due Process Hearing, and a side of IEEs

Special Ed on Special Ed

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A Due Process Hearing is just one of the dispute resolution options available to parents of children with special education needs. But what is a Due Process Hearing? In special education, Due Process Hearings are not often fully adjudicated, because the issues are resolved through some form of settlement. In fact, I'm pretty sure special education is the only civil right we negotiate away. For those fully adjudicated, parents rarely win. The school has significantly more resources (from their administrative staff to their on call attorney). Parents simply don't have the same legal, financial, and emotional ability to pursue and complete a full due process hearing. And that is why it is so exciting when a parent wins!!

Today, we look at due process hearings through the lens of one specific case in Connecticut in which the Parents prevailed. Meredith Braxton is a special education attorney in private practice in Greenwich, CT (bio below), who recently prevailed in an interesting due process hearing right here in Connecticut. We discuss the process, the facts, and the final decision as we break down this special education due process hearing.

Meredith C. Braxton, Esq., has been practicing law for 32 years, with a primary focus on special education for 20 years. After spending time in general and business litigation in "big law" in New York City and two smaller Connecticut firms, Meredith started a solo practice and began representing students and parents in their efforts to enforce their civil rights by having their children identified, securing appropriate services, and enforcing their rights to appropriate placements, whether via PPT, negotiation, an administrative due process hearing, or appeal to the federal courts. Her office is in Greenwich. Meredith is also a partner in a companion practice with her colleague Liz Hook (Braxton Hook) to represent families in New York in special education matters and individuals in both Connecticut and New York in education-related civil rights and tort cases as well as employment matters.

The full decision can be found here.

You can find Meredith's contact info here.

FLASHBACK: If you are curious about other dispute resolution options, you can check out the episodes What's the Deal with Mediation, State Complaints, and Special Ed 101!

Check out this episode!

TRANSCRIPT (not proofread)

SUMMARY KEYWORDSwitnesses, hearing, decision, officer, felt, parents, child, school district, case, board, argument, student, attorney, people, meredith, thought, footnotes, understand, works, remedy

SPEAKERS

Meredith Braxton, Esq., Dana Jonson

Dana Jonson 00:08

All right. Welcome back to Special Ed on special ed. Thank you for coming back and joining me today. Today I am meeting with Meredith Braxton one of my favorite Special Ed attorneys from Connecticut. Hello, Meredith. Thank you for joining me.

Meredith Braxton, Esq. 00:21

Good morning.

Dana Jonson 00:22

Good morning, we're going to discuss a case in which Meredith prevailed and discuss the components of a due process hearing, or decision, or pleading or all of that, through this one case, in which Meredith prevailed. But before we say one word, I'm gonna play my disclaimer for you all. The information in this podcast is provided for general informational and entertainment purposes only, and may not reflect the current law in your jurisdiction at the time you're listening. Nothing in this episode, create an attorney client relationship, nor is it legal advice, do not act or refrain from acting on the basis of any information included and accessible through this episode without seeking appropriate legal or other professional advice on particular facts and circumstances at issue from a lawyer or service provider licensed in your state country or other appropriate licensing jurisdiction. All right, Meredith. First of all, congratulations. This is awesome. You're welcome. This is a 54 page decision. There are four issues at the beginning that you raised 176 findings of fact, about 36 conclusions of law. And at the very end, there are nine orders. So that's a little overwhelming. And this is a final decision and order. And I'm a lawyer, and I was so excited when I got this when we all heard that you had prevailed, and we got to read it. And even I'm overwhelmed with 54 pages. So I want to start by, I want to read the actual issues that are listed in the decision. And then I want you to sort of tell us how we got here, if that works. Okay, so the first of the four issues in the final decision in order are, has the board denied the student a free appropriate education or a faith for the previous two years by habitually failing to record the PPT decision in prior written notice? We're going to come back to that one, too. Does the current IEP and placement deny the student faith? Three, should the hearing officer place the student in a residential therapeutic school for students with CP or cerebral palsy? And if necessary, order the board to hire an educational consultant to identify a placement for the student? And for is the student entitled to compensatory education, which would be education to make up for education missed? So those are some pretty loaded issues. Why don't you take us back to the beginning and tell us what happened.

Meredith Braxton, Esq. 02:54

First of all, this client is an amazing kid. And I actually spoke to her recently, she's really happy at man's two right now. So great, really thrilled. So I'm really glad we got there, I was actually brought in after the kiss was pretty well set up. There was a lay advocate involved who did a really good job, got some amazing ies, you know, independent educational evaluations from I mean, some of the most qualified people I have ever run across, they were really, super, she also has a super medical team, you know, all of whom, even though some of them were out of state, they weren't totally willing to testify, you know, and give me not very much time, but some time to educate the hearing officer about the student's conditions.

Dana Jonson 03:46

And that's an important component is that there's a difference between what is a medical responsibility and an educational responsibility. And as you and I know, a lot of times those responsibilities overlap, correct, making it incredibly difficult to get anyone to provide.

Meredith Braxton, Esq. 04:03

Yes, yes, but these medical providers were very well able to connect what was going on with her medically to what was going on with her educationally. So that's amazing. They were really, really helpful. But when this case first came to me, I wanted to file for due process, but I was always until the very end, I was always really concerned about the remedy, right? Because you don't know which hearing officer you're going to get. And if you're not able to put specific remedy out there you just don't know where that hearing officer is going to go with it. So we have not found a placement for this student yet. She's very difficult to place because she has you know, high cognition, but her physical disabilities are profound and urgent Communication Difficulties are profound. So there's just not a lot of places, you know, for that profile.

Dana Jonson 05:06

And that's an important piece to understanding what you want. Because we run into that problem a lot with families where they know something's wrong, they know it's not working, but they don't know what will work or what they do want. And that makes it really, really hard for us. Because and I explained this to clients a lot. You could go through a due process, hearing, and win on every single issue, and not get the remedy you wanted, right. And I think the example I use is, you could go into a hearing, asking for an out of district placement, go through the entire hearing, and have the hearing officer say, you are right, the school didn't do anything they should have done. But I think that school can create a program. So I'm going to order them to do that instead of residential, and now you've gone through the entire expense of winning a hearing. Right, and you're not getting any remedy. So that is a very concerning component that I don't think people

Meredith Braxton, Esq. 06:05

realize, and I really wasn't willing, you know, I advised my client that I just didn't feel comfortable filing until we had better direction there. So but as time went on, first of all, she was able to eke out a little money to find an ad consultant. And this ad consultant was really great. He was wonderful to work with. And I couldn't stand it anymore. I felt like Greenwich was torturing this, like literally torturing this kid, because, you know, I was on the back end of every email, and phone call, and what they were doing to I couldn't take it anymore. I really just I couldn't take it anymore. So I was like, Okay, we just have to file we have to get this hearing going. And hopefully, by the time we get to the end of the hearing, we will have a remedy in mind and we won't have a placement. We almost got there. Not quite but you know, it turned out okay. But that was a little bit of a, you know, risk that we took, but what was going on was so unacceptable, that that you know, as a moral proposition.

Dana Jonson 07:17

Right. Right. And I think that's where school districts don't realize they really messed up is when they one of us off? Yeah, is you know, when one of us is even in the grand scheme of everything we've seen and experienced if we get off, we're like a dog with a bone. Yeah.

Meredith Braxton, Esq. 07:34

Yeah.

Dana Jonson 07:36

Don't do this. Don't get out of my way.

Meredith Braxton, Esq. 07:37

Yeah, yeah. That's how we sort of got to filing the various issues that wound up being presented. Actually, we didn't even really address the faith based on not recording PVT decisions appropriately, even though they did not I was gonna ask

Dana Jonson 07:55

you about that. Because now in the in the new IEP, which I've yet to see, in case you're wondering, every school district I'm dealing with is like, yeah, we'll deal with that later. I gotta get back to school right now. So talk to me after Christmas.

Meredith Braxton, Esq. 08:11

What I'm what I'm hearing from them is it's taking them six hours to fill out the new form exactly this new

Dana Jonson 08:17

convenient form that was going to take less time. But there's no prior written notice in it now.

Meredith Braxton, Esq. 08:23

But I thought the prior written notice was supposed to be a separate document, but I have a separate one here.

Dana Jonson 08:27

But we haven't seen any documents yet. So I think that this is a really interesting point about the prior written notice. Because what that means in that issue, for those who don't understand is that decisions were made in the IEP meeting that need to be documented in the IEP, because they were either accepted or refused. And when a school does,

Meredith Braxton, Esq. 08:51

the more the even more important piece of that is they're supposed to record why they did right. Or important part and the data they relied on to get there, right, which is usually how you can point out how freakin absurd their decision was. Right? Exactly. Because

Dana Jonson 09:09

this is my favorite is on I had one where they made the decision based on grades and performance. And the child had modified work and modified grades. So it was like, Well, wait a second. understand all of this.

Meredith Braxton, Esq. 09:26

My favorite is where they deny, like a residential placement. And they say it's based on the independent evaluation, you gave them that recommended residential place.

Dana Jonson 09:36

Fabulous. Yeah. So it's based on that because we read it. And that's how we read it. And we rejected all of it. Yeah. So actually, that leads me to my next question, which is, you know, after you read the issues, and the piece on why the hearing officer has jurisdiction, we get to your 176 findings of fact. And so the findings of fact, are sort of the meat and potatoes, is that right of the

Meredith Braxton, Esq. 10:03

of the you don't you don't get to conclusions of law without those findings of fact, they're the

Dana Jonson 10:08

evaluation of your due process demand, right? findings of fact are what you base everything else on. So how does the hearing officer determine what the findings of fact, are? Like? Do you provide those in your brief or your due process demand? Or how does the hearing officer come to determine which facts are actual facts?

Meredith Braxton, Esq. 10:29

So the post hearing brief is, is always proposed findings and facts and conclusions of law. And, you know, I can track through this decision the places where he definitely adopted, you know, what I wrote in my brief, but there's a lot of it where he had his own thing going and this particular hearing officer, who unfortunately has been picked off by virtue Moses, since then, he listened so carefully works for birch and Moses now, yeah, they hired him right after his case.

Dana Jonson 11:00

Sorry, I can't help but laugh.

Meredith Braxton, Esq. 11:01

I know. It's so upsetting. Speaking of absurd, yeah. Anyway, so he listened really carefully to all the witnesses and clearly was focusing on their credibility. And I could tell I was landing the punches, you know, as I was going on, and he was getting them. And the one that was really telling was, you know, there's a principle in examining witnesses for trial lawyers where, you know, if you've got a hospital, first of all, he did go with the school district employees who I called, on my case, were hostile witnesses who I was allowed to ask leading questions. Great. So a lot of our hearing officers won't go there. And it makes it harder, because you have to do direct examination with non leading questions, right, anyway.

Dana Jonson 11:52

Right, I mean, that's getting a little in the weeds. But for parents who don't understand that, as attorneys, when we examine a witness, we are bound by certain restrictions, we can't just ask them anything, we can't just suddenly blurt out stuff, right. Like, we have to have a foundation, we have to lead them to a certain place, we have to have demonstrated certain things and have specific items and evidence. And there's a process and if you don't go through the process, you don't get your information across. So one of the ways in which we ask questions is, we ask leading questions all the time in our day, across the day, and you're not allowed to do that, unless they're, especially with your children, especially with your children, right, we're trained to write to ask leading witness. And that's why children shouldn't be witnesses, because you can lead them. So we really have to be cautious about that. And so then it depends on the hearing officer as to what they will allow, and they have a significant amount of leeway in what they will allow or not allow. So it sounds like this hearing officer was really focused on understanding the issues

Meredith Braxton, Esq. 12:58

he really was. So one of the principles for examining witnesses from the other side, is, if you land your point, you don't go on to ask like the ultimate question, because then that clues them in that they just messed up, and they will go back and they'll fix it. You instead use that nugget in your argument later on. So that's how we roll I got one of the school district witnesses to say that she made all the decisions in the PPTs. And so I'm sliding away from that, because I'm like, hopefully, like guaranteed, and, of course, returning picked up on

Dana Jonson 13:35

that. But whatever. That's kind of a mess.

Meredith Braxton, Esq. 13:38

I'm going on, going on to the next thing. And the hearing officer goes, whoa, whoa, whoa. And then he starts questioning her and she doesn't fix it. She doubles down on it. And then I'm cross her attorney tried to save her and she didn't go for it. So she basically got predetermination. That's amazing lack of parental participation. So the hearing officer in this case, he really listened. And he was sort of going through issues in his own head clearly the whole thing about you know, in his findings of fact, in his conclusions of law, he talked a lot about how the school district had the wrong primary disability for this child and that how it drove an inappropriate IEP. Now you and I know that's actually true. Most of the time, if you have the wrong primary disability, it does, to some extent derive. You know, services. Absolutely. Schools always say is no, we give whatever services are needed, no matter what the primary handicap is, blah, blah, blah. I felt like that was just a loser of an argument for me like when I didn't want to spend a lot of time on. I had so many other issues that I thought were really compelling and really important, and that would win the case. It was funny because he kept bringing it up. During the hearing, and I was like, Yeah, you know, and I didn't really press it with witnesses, but he did. You know, he would ask witnesses his own questions,

Dana Jonson 15:09

and I find that fascinating about hearings is that the hearing officer can and will just stop everything and be like, I have some follow ups. I need you to clarify that. Yeah. I love it when we hear a hearing officer ask questions, because all that says is, oh, they're listening. Yeah, do get it because not all hearing officers really do get it. Not all of them have been doing what we do our whole lives. And we have to not only explain to them the process, the law but the disability.

Meredith Braxton, Esq. 15:35

Right, right. And this one is very low incidence. So it's particularly difficult to convey what it's like, like I said, we had a, especially her physiatrist was really great at describing what it was like to be, I'm allowed to use her name, she doesn't care. Okay. So you know what it was like to be Sydney. And that really got to the hearing officer. So did the videotapes of what was going on on the bus ride. Wow, I thought, did you get those? Well, they're an educational record. They're a four year record. And I was like a dog with a bone. And I did when I filed, I also served an Administrative Code document request. And so at the very beginning of the hearing, when you're sort of like, what housekeeping items do you have, I'm like, I'm asking for these documents. And these videos, they haven't given them to me, I can't do this hearing without it, and I got him to order them to be given to me. So I find

Dana Jonson 16:36

that I don't always get everything in a FERPA request. There's never I get everything. Shocking, really. It's shocking, really, but and in my FERPA request, I have a laundry list of things I would like included, and then I just hope I get most of it. You know, videos, and particularly bus videos, I think have to be the hardest things to obtain. That's just my experience. It's just a lot of red tape to get your hands on those videos. So that is huge. Yeah. So you provide your findings of fact, the board attorney is going to provide there's right. So what the hearing officer chooses is going to be based on the testimony. Right. Right. And so that's your point in your testimony is to demonstrate what actually happened, right, I presume you had good witnesses and parents for this? Because I know for me, anytime I contemplate whether this is something that would go to due process or not. The first thing I think of is Who are my witnesses? Yeah. And my first thought is can either parent be witness, and that sometimes makes the decision?

Meredith Braxton, Esq. 17:49

You know? Yes, I had one due process where, I mean, the hearing officer literally hated my client. And he was difficult. He was a difficult person. He was a difficult person, like, I liked him. But you know, I'm weird. But she ruled for us anyway. And I was a little I mean, she even dropped a footnote about how she didn't believe that I love that. Yeah, yeah. So it's very important. The parent is very important. Sometimes, like, in this case, I had the parent, but as a backup, I also had her sister who had quit her job to help Sydney, you know, during COVID, and was, I mean, had basically been in her life the whole time. So it was very, sort of a corroborating witnesses if I needed it. Or it could be the primary witness about what was happening during remote instruction, and stuff like that. So yeah,

Dana Jonson 18:45

and I see you guys had 11 witnesses, and the board only called to it looks like,

Meredith Braxton, Esq. 18:50

Yeah, cuz I called all her witnesses on my case.

Dana Jonson 18:54

You called them all first, so that you could get that done with

Meredith Braxton, Esq. 18:56

in this, you know, in this particular school district, I find that the attorney, if you do this, if you if you call her witnesses on your case, and she often hasn't glommed on to what your their themes are, and doesn't really prepare her witnesses. Well got it. Well, I can tell my stories through them. And they're the people I had first, and the hearing officer had a little issue with it. He was like, aren't you gonna call them? And I'm like, Oh, get there?

Dana Jonson 19:27

Yeah, well, because mom's usually number one, right? Yeah, I don't like doing like that. Well, good. That's, that's great. You should talk to my lawyer about that, because she was working really, really hard to figure out how to not put me because for all of those parents out there who've heard you wouldn't be a good witness and make and took it personally and felt bad. I was informed I would be a horrible witness. So I'm an attorney who does this every day. So you know, don't feel bad about it. So you called everyone that you needed for your case and the hearing officer allowed you to treat the school personnel as if they were hostile. So that is huge. You know, it sounds like we got a really great hearing officer and then a board firm just snatched them up immediately.

Meredith Braxton, Esq. 20:12

It did save money, how that works about that

Dana Jonson 20:16

money how that works. I wanted to touch on the timeframe to because you filed on October 12, in 2021. And your briefs were due in March 28 2022. And that is actually only five months, I was actually thinking for a hearing that went through so many witnesses that you would conclude this and only five months, I was kind of impressed. And to tell

Meredith Braxton, Esq. 20:43

you the truth, this included a month or two of me foot drag. Oh, wow. Because I was I was foot dragging. Because we didn't have that placement. Right. I was like, you know, Brenton, come on. So I delayed things a little bit. And then I decided I gotta go, Yeah, this has got to get going. Right, the hearing officer made it really clear that he was feeling pressure from the State Bureau of Special Education, to move these hearings along faster. You know, they're getting very concerned about their timeline issues as they should, as they can. Absolutely. He assured me and I felt with, you know, after we'd been going at this a little bit, I felt like I could believe him about this, that I could always just refer to an exhibit, and he would read it. And I felt like he would read. Okay, so some hearing officers, you really have to have every single bit like presented orally to them, or they focus on it. But in this case, I felt like I could rely on him to read the exhibits that were admitted. I sped through some of this stuff. Yeah, I mean, the medical people, I probably had a an average 30 to 45 minutes with them, half of which I seated to the other side. Right, wow. Yeah. And so I was like, bang, bang, but I had one day when I had like six witnesses, I blew through six witnesses, that's insane. I then laid down on the floor of my office and made it like an IV of vodka, but it was intense. But it made the hearing officer very happy, they do appreciate it. And I kind of liked it, because I was able to get all the really important stuff in and then the other side was kind of limited and what they could do with it. You know, they were also limited. The you know, in the end, I kind of liked it, even though I ordinarily would,

Dana Jonson 22:43

yes. Where are you for this matter? It worked for this matter for this hearing

Meredith Braxton, Esq. 22:47

officer, you know, so much depends on the hearing officer get and what their style

Dana Jonson 22:53

is. Yeah. And I hear that a lot from parents, do you have experience with this district? Do you have experience with this lawyer? And all of those things do matter. But I feel like the experience matters more in knowing how to shift because all those players change all the time. And I've had evaluators where I felt like I could just leave the room and they'd be fine. And then the next tvip meeting, I go to them, I'm like, Who is this pot person? Like what did they do to my evaluators? So you just never know, there's a lot up in the air,

Meredith Braxton, Esq. 23:26

you don't know. And that's what I try to convey to my clients about due process. It's a high risk situation, because you don't know which hearing officer you're gonna get. You don't know what pressures they have on them, because they are getting pressure from above, you don't really know how the evidence is going to come in. You don't know whether some of the board people who you think are charlatans are going to come across as believable. You don't know if you're going to be able to get in every document that you think you need to get in. I got a lot out of those board witnesses that have they been better prepared and probably would not have. Yeah, and that

Dana Jonson 24:03

preparation is big. I mean, the prep is big for your clients, too. I remember a colleague telling me I mean, when you're talking about how is someone going to present colleague was telling me they had a client and the school had really messed up. But this was an exceptionally wealthy client who came across as exceptionally wealthy when she walked in a room. And so she was asked to dial it down. So she walked in to the hearing and her kids dinner, blue jeans and a T shirt and no jewelry. And the board almost dropped dead. Really, because they were relying on this person to walk in and look like an extremely wealthy person and present the way she normally does and hoping that that in and of itself would sway the hearing officer. But then she walked in and they're their philosophy has gotten now a good attorney doesn't rely on just that. Right. But to your point, people can present as anything when they walk in that door. Yeah, and they can Say anything. So, like if you if you have someone on the line on the stand and they are flat out lying. What do you do?

Meredith Braxton, Esq. 25:08

Well, I mean, it depends on whether I have documentary evidence that I can confront them with that shows they're flat out lying. If this is where a lot of times you do want to have at least partial transcripts of various meetings and recordings. So they can't claim they said something other than what they did. And it's a problem, because in my experience, almost I would say 95% of board, witnesses lie under oath. Yep. And have no problem with it. Yeah.

Dana Jonson 25:38

And it's shocking, sometimes to parents. Right.

Meredith Braxton, Esq. 25:41

And absolutely, I mean, honestly, when I first started practicing law, many, many, many moons ago, I was shocked, I assumed that everyone who was put under oath would tell the truth. And then I learned that actually a minority and people put under oath will tell the truth. It's not just in special education. Yeah, just board witnesses. It's pretty rampant,

Dana Jonson 26:04

pretty rampant. And it's I do think that people take it have a different level of respect, being under oath. I do believe that, as a rule, and I do think that that anxiety is heightened in the person when they are lying under oath versus just in a school meeting, I, I absolutely can see that I can see the change in their body language from lying in the IEP meeting to lying on the stand. They're way more uncomfortable. But that's another reason why I like going to the IEP meetings, because they may be more comfortable there. But you do get a sense of who you can trip up and who you can't. And if the school has bad witness, you make sure they know that.

Meredith Braxton, Esq. 26:43

Also, I prefer due process hearings to be in person, because if you've got that body language going on the other side, you can start drilling into it. And sort of push them. Yes. completely out of their comfort zone.

Dana Jonson 26:58

Yes. And that's more difficult on the screen. Oh, it's

Meredith Braxton, Esq. 27:01

impossible.

Dana Jonson 27:02

Have you done any hearings on the screen?

Meredith Braxton, Esq. 27:04

Well, this one was completely virtual,

Dana Jonson 27:06

Oh, this one was virtual? I don't think I realized that maybe I must have I mean, maybe just because it's so normal now that I didn't think of it. So that must have been really hard, then I didn't even realize this was virtual.

Meredith Braxton, Esq. 27:18

Yeah. It was very hard. That's really hard.

Dana Jonson 27:21

Amazing. Your experiences you would still prefer in person, right?

Meredith Braxton, Esq. 27:26

Yeah, for that very reason. Just looking through the screen at someone, you can't hold their eyes, you can't sort of judge their expression. You can't figure out how to destroy them. You can't pick

Dana Jonson 27:42

them apart to the degree that you would like to.

Meredith Braxton, Esq. 27:47

So bad, you know, so you're when you're a litigator, you just have to admit that you have a dysfunctional personality. Right? Yes. So that's why we do this, right? Yes, exactly. We got paid for being like completely not the social norm. So

Dana Jonson 28:01

I always say that I do that I'm a lawyer, because I think this way, I don't think this way, because I'm a lawyer isn't the only place that that I fit in. So let's talk a little bit about the remedies. Because from the remedy in the decision, it doesn't look like you ever found that one place, did you?

Meredith Braxton, Esq. 28:20

Well, no, we found it afterwards. So may Institute was one of the ones that our ED consultant found that he thought was the leading candidate. Ironically, also, the neuropsychologist who did an independent evaluation had put that out as a recommendation as well. So I was able to direct the hearing officer to an email from him saying, you know, this would be a good place. And also ironically, that particular neuro psychologist, I just, you know, I wasn't in love with his evaluation. And I was very concerned about him as a witness, because I've actually seen him under oath before. And so I elected not to call him interesting. Yeah,

Dana Jonson 29:03

that's a risk. Huge risk, right? Like, because, I mean, at first thing you're gonna hear from any attorney is you want to go to a hearing, you need an expert.

Meredith Braxton, Esq. 29:12

Yeah. Well, so but we had all these other experts. And but that's usually the one that we want, right? It's the neuro Psych. Fortunately, he had spoken to that entire medical team, and incorporated what they said in evaluation itself. And then all of those medical experts wrote follow up letters saying we agree with that neuro psychologist, this is what she means. So I called every one of those medical experts got it. And that's how I got it. I mean, and this is what happens in a due process hearing like, I had him on my witness list, in case I had to I had to put them on. As things develop, you have to make decisions about what you're going to do and what's the whole in your case, you know, then I was like one of the holes My case is, what's the remedy? And I don't usually call Educational Consultants, but I did with this one. Also, because he's got lots of bonus CDs, right? He's, he's run a therapeutic school. He's been, you know, he's

Dana Jonson 30:15

got credentials that you can defend. Yeah, I love that. When I get stuff from parents who say, you know, this is the expert. And I'm like, well, they don't have any credentials. No one's ever heard of them. They're in a different country. I don't know that I'm going to get anyone on board.

Meredith Braxton, Esq. 30:32

He worked really hard for this placement. I mean, yeah. Beyond what he ever has to do with anyone. I was on a low fee. On this case, he did a low fee on this case. So we've sort of felt like, Okay,

Dana Jonson 30:45

we're gonna do we're in it together. Yeah.

Meredith Braxton, Esq. 30:47

And, and one of the things we got as a remedy was that he got paid his full fee.

Dana Jonson 30:54

Oh, good. Yeah. So that's what I was going to ask you about was the remedies, because one of the remedies is when you win a hearing is that you're entitled to your legal fees? Right. So what I'm curious about is when you submit that legal fees Bill, what is that going to look like after 11 witnesses and five months? It was

Meredith Braxton, Esq. 31:15

close to 100,000. It was like 98,000.

Dana Jonson 31:19

There were a few things in terms of parents listening to this just passed out. Yeah. But

Meredith Braxton, Esq. 31:26

that's what I tell my my clients, it's between 50 and 100,000, for average due process. Yeah. And on top of that, you may have to be paying experts. And that's not reimbursable.

Dana Jonson 31:37

Right. So you're not going to get back and that I can't risk, you know, but right, we can always risk our fees, right? Because we can try and get them back. So that does put give you more skin in the game, I guess.

Meredith Braxton, Esq. 31:49

I mean, they pushed back on a couple of things. One of them is definitely legitimate. I put it in there and hope it would just slip by but it didn't, you know? And then there were a couple that were like, arguable. Right? Right. So I just rolled over on that, because I'd rather get it paid. Right. So I want to be reimbursed 92,000?

Dana Jonson 32:11

Well, and I mean, you know, say it's the only civil rights that we negotiate. So parents are always negotiating way their rights. And we as attorneys are always negotiating away our fees. Yeah, we do nothing on the parents side, but negotiate against ourselves from from the beginning. I don't know of very many of any attorneys who have gone through a full hearing and actually received their full BS, they just don't I also find it when when sometimes I hear people say, Oh, well, litigation fees are so much more than, like, we're never seen. No calm down. Take it down a notch. Uh, yeah, I found the remedies really interesting because one remedy said to find the placement and a consultant is ordered. If you can't find a placement, so the the hearing officer did order that consultant as well, correct?

Meredith Braxton, Esq. 33:02

Absolutely. But and the thing with may Institute is they are not going to accept anyone unless they're fully funded, right? Because it's a very expensive place. Yes. So the day this decision came out, the ad consultant got on the phone with them with two words fully funded. And within a week, we had an acceptance, but they had to do a little bit of hiring to bring her on, started right after labor.

Dana Jonson 33:27

Right. And I think that's important too, for parents to understand that not a replacement is ready to take your child that day. There usually an acceptance usually means that they can prepare to do that. So if you come, they will then start preparing. They're not going to staff for a student who's not there yet. That's very typical, then that's great. So now is this child going to be there for too long this is placed there

Meredith Braxton, Esq. 33:53

now. Yeah. So as their stereo slave foot and everything else? I don't see them after that horrendous decision. Yes, coming back and saying no, you're ready to come back to Greenwich, right.

Dana Jonson 34:04

And school districts have done that they have a year after a hearing decision said, Well, we gave it a year, and now they're all ready and everything's back together. But you have that hearing decision under your belt. And that is something you can pull out and use. And it would be foolish to do that, at this stage. And particularly given given how many fights are going on between parents and school districts at you know, there was a time where fighting every hearing decision was worth their time and energy. I don't think it is anymore.

Meredith Braxton, Esq. 34:34

But then so there was a significant amount of time between when the decision came out and when she was able to go, you know, in the meantime, he ordered remedies for while she was still in the British school system. And I actually had to get down this state's throat to get them to enforce this decision. Really, I did what happened. They were ordered to have an aide in the home for 30 minutes before the ride to school to help the mom get her ready, and they just didn't do it. And I had to go to the state. And they eventually got to st Greenwich Get your act together, you know, and do it and they finally did. And it made a huge difference. Then she was supposed to have a medical taxi instead of the bus that was so torturous for her never got that I was on the state's case, like every two days. And Greenwich kept giving them a spreadsheet showing all the contacts they made to try to arrange a medical taxi. And I was like, this is just baloney. I mean, I'm literally there was one point where they were like, Okay, well, the legal director Mike McCann and Mary Jean Shugborough, who, unfortunately, was the person assigned to the enforcement part of this. The retired. She's retired, isn't she? Yeah, except she's still a part time consultant for some things. I'm like, Why did you assign us to a part time retired consultant? You know, it's

Dana Jonson 36:04

pretty significant. Yeah.

Meredith Braxton, Esq. 36:05

So at one point, they were like, well, we're gonna be on the phone with graduates about this on Monday. And we'll let you know. And I'm like, I want to be on that phone call. But I'm on vacation. And they're like, I'm like, do it on Friday, when I'm not on vacation. Oh, well, we can talk to Friday, and then we'll talk to them on Monday. I'm like, No, I will just be on this call during my vacation. So I'm hiking in Maine and losing a signal every three seconds, and I am yelling my butt off. And my husband's like, Oh, my God. And I like I keep losing the signal dialing back in angrily, and on top. So because anyway, never got the medical text, even though I'm, I'm busting a gut. Then on top of that in between, yeah, when I started getting down on their case, and this phone call, they had finally posted this decision, you know, I got it by email. But then they post all of their decisions, right? And the decisions are written. So there's no identifying information the student has called student parents called parents, etc. But it identifies the witnesses, aside from the parent, and the school district and all that, while they put this one on, and they've blacked out everything that would identify the school district or the school district witnesses. And I was like, Okay, so while I'm on the phone screaming, I'm like, who did this? Which one of you did this? You know, what are you doing? They're like, Oh, we thought it might be too specific. And you know, have identifying information. I'm like, you know, if that was your concern, you would have called me or the parent to ask if we had a problem with it, but you didn't. So it seems to me that you were just trying to not embarrass Greenwich, which should be completely embarrassed about how they treat

Dana Jonson 37:54

my dogs going nuts. No, that's exactly what I was gonna say. Which is that, you know, that seems like protecting the district. Were?

Meredith Braxton, Esq. 38:03

Absolutely, yeah. In the meantime, I had gotten a written consent from my clients saying you can put it up on redacted and I was like, I have that. And they put it up on redacted after that. But, you know,

Dana Jonson 38:14

I've seen that before, though, that the school district personnel and school are redacted. Is that a thing? No.

Meredith Braxton, Esq. 38:20

If you look on every single other decision, there's not a single redaction. Not one. So who decided to do that? Mary Jean Chabot, she admitted? Did she say why? Because she was afraid it would identify the child's that's a lie. I think so.

Dana Jonson 38:43

I feel like that's a lie. But that sounds interesting. Well, you know, and it really is frustrating, because I always feel like when people say, Oh, but these poor teachers, and you know, it's not really there. I feel like I'm with you on that. And I feel as a former teacher and a former administrator, admittedly, I spent about 10 minutes in each role, but I didn't have a problem being honest in the meeting. Now, that was me. Perhaps I didn't have as much at risk as some people by doing that. And I respect and understand that. But I go nuts. When parents say, well, the teacher told me this, but they won't say it in the meeting. And I always say, well, then I don't trust that teacher. No, I just don't, it's great. You're getting inside Intel. But how do you know? They aren't turning around and saying the same thing to the district about you? Exactly. You know, and they're protecting their butts.

Meredith Braxton, Esq. 39:39

Yeah. If they're not willing to say it in the meeting, it's useless. It's absolutely

Dana Jonson 39:42

useless. You can see it when people are scripted. In the meetings, you can tell. And I you know, look, it's not my intention to embarrass anyone. But if you have made a conscious decision to toe the party line, then you are making a conscious decision to take the consequences of that action,

Meredith Braxton, Esq. 40:06

this child's speech and language pathologist basically said that she agreed to include oral motor goals to help Sydney learn how to talk, which she could do, right. Basically, as a favor.

Dana Jonson 40:22

Oh, it's an accommodation to the parent.

Meredith Braxton, Esq. 40:24

Yeah, cuz she wanted to talk. But you know, she didn't really need it for accessing the general education. Oh,

Dana Jonson 40:29

why do you need language for that narrative? I know, I'm sorry, I just get flip. I can't stop myself. I love that when it's an act as an accommodation. I'm

Meredith Braxton, Esq. 40:38

gonna call out that I'm gonna call it call that speech pathologist out on that? Yep. You know,

Dana Jonson 40:44

accommodation is what the child needs. And you know if that I found that frustrating during the pandemic, too, when people were like, well, I don't want to be on tape or on screen or what have you. And I do understand that there is something to being under a micro microscope and people taking things out of context. We've all had that happen to us at some point on the internet, right? Or in a text, something has been taken in the wrong tone. And I just feel like, Haven't we all been using the internet long enough that we should know that. And you know, that tone gets lost and things get lost in translation. But knowing what happens, and being able to reflect on that and make changes that that's important if we're not willing to do that. And that's where I feel like we are right now in schools. I feel like no one's willing to reflect. Yeah, because everyone's so afraid, even more so than before, to look back and say, Yeah, we messed up. And I understand because there are legal ramifications to saying that, so I get why they're not announcing it to the world. Yeah. But maybe their inside voice like in the back of their head, maybe could say, We screwed up, and we gotta fix this. You know,

Meredith Braxton, Esq. 41:58

honestly, I find that the better board attorneys manage that, right? Yes, by having a good relationship with you giving you a call saying, can we talk about some solutions? Right? It doesn't have to be an explicit, we messed up, it can be willing to make it better. Right? Right. Good board attorneys. manage that.

Dana Jonson 42:19

Right. And some board attorneys, you know, when when the parent calls you, I'll say, you know, what, I know, we can get X, Y and Z, which will help bring everyone back to the table and and start the conversation over. And then there are some board attorneys where I have to say, look, I hate to tell you this, but we're going to start off fighting, because that's where you are. And that's unfair to it depends on who represents your district as to what kind of what access you will have to that due process, and whether you will be able to fight them or not. And not every parent has access to us. No, you know, and I was just talking to Christine Lai on my last episode about self in the special legal fund and how they've allowed for so much access for parents afforded us I've you know, regardless, look at this, this is a like I said, it's, you had 11 witnesses, it took five months, this took up a significant amount of your time, most of which you were not paid for at the time. Like that's something else people have to realize we get paid when we work, right. Like I'm not on a salary over here with fabulous benefits.

Meredith Braxton, Esq. 43:26

What we eat what we kill, as they say, exactly, we

Dana Jonson 43:29

eat what we kill. Yes. I

Meredith Braxton, Esq. 43:30

mean, I had restricted cash flow for a few months there because it took time,

Dana Jonson 43:35

it takes a tremendous amount of time for us to have even one full blown.

Meredith Braxton, Esq. 43:40

If I win, I'll be fine. If I know, I'm gonna be second run for a little bit, you know?

Dana Jonson 43:45

Exactly. So I mean, yeah, I mean, it's tough all the way around, and you have to have the bandwidth to do it. And you have to not be afraid of creating bad law because you have to look at if I lose this. Yeah, the way that I have asked this question, if I lose it, what will that do to other families? Exactly.

Meredith Braxton, Esq. 44:04

And this decision, I felt like I got more good law out of this, than expected. So tell

Dana Jonson 44:10

us what you think the main takeaways are that you got from this this decision that you think are solidified that are helpful for parents?

Meredith Braxton, Esq. 44:18

Well, the blasting of how the school district treated COVID and learning during COVID? Yes, and the failure to implement the IEP at all, really during COVID. And he runs through that was he on the legal side, the support for you were supposed to do what you needed to do and you didn't do it that leads to combat. So I thought that was good. I thought the way he treated the requirement for residential placement when there were mixed issues of because here we had mental health issues, but also medical issues. But those medical issues were very much intertwined with ability to be educated. Yeah, right. So the way he merged those things In talking about the requirement for a residential placement and the board's duty for that residential placement, I thought that was very helpful. Yeah. So those, those were the two takeaways that I really enjoy.

Dana Jonson 45:15

Now, those are great. And those were great for the rest of us. Thank you. Here. I say, the combat peace to the combat peace is great.

Meredith Braxton, Esq. 45:24

Yeah. So that was good, because he talked about how you don't need to have gross violation to get combat if you're not in a aged out situation. Right. And he kind of blasted the whole equities argument, which I was like, I didn't even understand the board's argument. I'm like, this isn't the unilateral placement case. Right. That's third prong about the equities. Right. Yes. So but he turned that around to Well, maybe it's, you know, relevant to combat? Well, and

Dana Jonson 45:56

that's I mean, to explain to parents who don't understand really what we're talking about. No, no, it's good. It's good. Because what what that means is there are specific arguments we have to meet. So the first question I have to ask is, did the school district provide an appropriate program? And if the answer to that is yes, then nothing else matters, right? So there are different prongs of these different arguments. And some of them get to the point of equity. And this one doesn't. So it was unclear where he was going when he went down that road. But what he was doing was taking that equity argument and, and putting it towards compensatory education and saying that, for these reasons, this child does require compensatory education, which is meant to bring the child back up to where they would have been had they had that service. So that's an that's a big win, especially post COVID. Where that's a lot of the arguments is whether it's compensatory or not. So that's, that's a tough argument. And so that was a great win for parents. Yeah. And the last thing I want to ask you about, though, is the quotes throughout the decision, because I started reading and I thought was this a quote from the transcript? So at the beginning of every section, the hearing officer wrote a little quote, and the chapter and pages that it was from so I put that into my trusty Google search, and discovered that he was quoting Helen Keller throughout the whole thing. Can you talk a little about

Meredith Braxton, Esq. 47:24

could have looked at the footnotes, or I could

Dana Jonson 47:27

have looked at the footnotes that would have required this dense dyslexic woman to look at every footnote in this 54 Page decision.

Meredith Braxton, Esq. 47:37

Okay. We won't do that to you. He basically took the I guess it was the autobiography of Helen Keller, and took various clubs, this kid touched his heart. And she's touched mine as well. She wants to start a school for kids with disabilities. She's she's just, she's an amazing kid, right? Before she went to me. I went and had dinner with her. And she finally had the new communication device that had actually been recommended and like managed never did. Wow. And we sat and had a really long, pretty fluent conversation about how do we get to the point where she gets to go to May? What was the hearing? Like? Who did I call? What did they say? You know, do I have to go back to Greenwich public schools for like three days to the school they have before I go to make? No you don't, I can see her really doing something in the world. Her physiatrist testified very clearly that he expects big things from her. And the hearing officer clearly felt that this child had a lot of potential and could make some change in the world. I think putting in those quotes helped bring it to like, we need to liberate this kid from her, the confines of her body, right? And let her be the person she can be. So I just about cried when I was reading through the decision with those quotes sprinkled throughout. I talked to a board lawyer afterwards. And she was like, Oh, that was quite a decision, like, I guess was just like, you know, the quotes from having Helen Keller were a little bit of overkill on like, this is run through your veins,

Dana Jonson 49:22

right? And by the way, not if you were there, if you were there. These fit in perfectly. And I did I mean I did read a couple of footnotes narrative, but I liked how he he did talk about while this student is not deaf and blind, they are bound by these disabilities in a way that we can't comprehend. And that it wasn't until, you know Helen Keller, somebody taught her how to communicate that she was able to share herself with the world and that those comparisons he felt applied to this student as well. And I think that just added to the impact of those quotes. And you're right, you could tell that this was a very emotional matter. And this is one of those matters where you read through it and you think, well, it's a slam dunk, right? You read this and you're like, of course, you're gonna win. But that just simply isn't how special education works, you know,

Meredith Braxton, Esq. 50:31

and back to what we were talking about at the beginning, you can win, and the remedy can wind up being useless.

Dana Jonson 50:39

Exactly. So there's a lot of risks, but it's decisions like this, that are the reason why we continue to do it, and move forward. And also, make sure that your attorney moving forward and a hearing has the experience and background necessary to and resources. You know, if you don't have experience, you can get experience, right, you can learn, you can get experience, you can get mentored, you can do all those things. But you can't pretend you know what you don't know. Right. And it's important to make sure that your attorney does practice special education law, that is their primary, that they are not doing something else, and are not distracted by other laws that may conflict with the ID EA, which people don't realize there are a lot of educational rules and laws that actually conflict with the ID EA. So if you're more familiar with those than the IDA, then you may not be giving the right advice.

Meredith Braxton, Esq. 51:44

It's ironic that a lot of that was passed in order to be parent friendly, and increase parental participation in the education of disabled kids is so non parent friendly.

Dana Jonson 51:56

It's not parent friendly. It's not free to access. No. Because if you want to access it, you need an attorney or an advocate. And those are not free. Just think about the professional development that parents do just to understand how to talk to their attorneys. I mean, to their sorry, to their school districts, you know, like, just to get the vocabulary to advocate for their child, they spend a tremendous amount of money on professional development and all of those pieces.

Meredith Braxton, Esq. 52:24

So back up for a second. The other thing I thought this decision was Brown was LRE least restrictive environment.

Dana Jonson 52:31

Oh, yes. Talk about LRE for a second. So

Meredith Braxton, Esq. 52:34

least restrictive environment means that your disabled children are supposed to be educated to the maximum extent possible with non disabled kids. My argument here was because they were screwing up so much. And they really did not include her appropriately in general education things. She was isolated from her peers. And it's even as much as like the chair they were using, they were having her in a wheelchair in her classroom, which separated her and put her on a different level than her peers. And the physical therapist, do

Dana Jonson 53:07

you mean physically, like height wise?

Meredith Braxton, Esq. 53:10

Yeah, so she's not even at the table, right. And they were like, you know, the IES were like, You need to get this kind of chair and play her here. So that she's with her peers. And they never did any of that. It was stuff like that. And then she would have total meltdowns, especially Shan Maxon, or whatever, and be removed from the classroom because of her meltdowns, and then be removed to go to the bathroom and spend all sorts of time on there. The general education setting for her was more restrictive than one that was designed for kids with similar disabilities. And he went for that argument, which I really appreciate it.

Dana Jonson 53:51

And that's an amazing argument. And I I make it all the time. It's, like all my philosophical, yeah, argument of what's least restrictive, right. And I had a student once who were arguing over Villa Maria. And in the public school, the student had to be in the sub substantially separate room all day, including lunch, including everything, but at Villa Maria, they could roam the halls, they could have lunch with

Meredith Braxton, Esq. 54:16

their peers. And from my perspective, that is absolutely and Hillary argument in favor of Bill Murray. Yeah,

Dana Jonson 54:22

exactly. Exactly. You know, and so, you know, fortunately, that didn't have to go to a hearing at that point in time, because I don't know where that would have landed. But I do think we are getting closer to understanding that that may be a more a less restrictive environment for that student. It looks restrictive to us,

Meredith Braxton, Esq. 54:41

but if they have no peers to relate to, right, exactly, and they're not being educated with the same materials, you know, if they're sitting in the general education classroom, everyone else is working on, you know, XYZ, but they're working on a different on a different level on a different skill on their own little worksheet. with their pero right here, that's not the least restrictive environment for that child. Now, they're being they're other, they're separated.

Dana Jonson 55:08

Right? They're substantially separate from everybody else, even if you physically sit them in the room and kids do not learn independence through osmosis. No, it's not by sitting near typically developing children that you become typically developing. The goal is to become independent. Right? And what does this child need to become independent? And sometimes what a child needs to become independent is more children like them?

Meredith Braxton, Esq. 55:36

Right. Right. So I thought that his ruling on that issue was helpful for this argument.

Dana Jonson 55:43

Yes, yes. That's very helpful for this argument, because it gives us a little something with some meat on it. Yeah, too.

Meredith Braxton, Esq. 55:51

When I when I was bringing it up, you could see him going like, that's an interesting point.

Dana Jonson 55:57

Yeah. And now I really hate for to Moses for taking him out of the hearing officer, Bill. I'm hotline.

Meredith Braxton, Esq. 56:07

He was he was previously I think he was in a judge advocate corps. Okay. He was a Jag. Um, you could tell you know, he have plenty of litigation experience. Right. Okay. So he was it was sort of easy that way for me, because my litigation arguments like right in a place where he understood them.

Dana Jonson 56:28

Right. That was good, good. Friend, now he's gone. And so this is the this is his swan song, which we will have framed up in many offices around Connecticut. This was incredibly helpful narrative. And thank you so much for coming on. And talking to me about it. I really, I don't think parents really understand everything that goes into due process. They just here fight the school district, I will put the link to your decision in my show notes. So anyone who wants to geek out like the one right? Yes, the unredacted one, so you can see everybody's name and all the footnotes. And she could just click on them and they pop up. So I'll put the link to that there. But if someone's listening, and they're like, Wow, I need to hire Meredith clearly, because she's the only attorney who who can understand me and my child. How do they reach you? How do they find you?

Meredith Braxton, Esq. 57:25

Well, it would be great if I had a website, but I just haven't over the last 20 years have the time to put Yeah, really

Dana Jonson 57:30

had a need. Hmm.

Meredith Braxton, Esq. 57:33

Really? I'm gonna do it soon. No, I swear.

Dana Jonson 57:36

Okay, I got I have a good name for you.

Meredith Braxton, Esq. 57:40

I've had it in process for a long time. You can look me up on the internet, probably. I don't know some I'll put a link to how you can find this. Sometimes when you put in Meredith Braxton. There's some Meredith Braxton some like soap opera or something.

Dana Jonson 57:54

Awesome. So you show up in the soap opera star? Yeah, I think that's great.

Meredith Braxton, Esq. 57:58

No, it's the name of a character.

Dana Jonson 58:03

Even better. All right, I will put a link to Meredith in the in the show notes as well. If you feel you must reach out to Meredith and find her. And thank you so much, Meredith, for coming on and talking to us and talking about your case. And thank you for taking it all the way. Because I think that that is not easy for any of us to do. And

Meredith Braxton, Esq. 58:22

you know, I had not had a case go all the way in like two years. So I was also sort of chomping at the bit. Yeah, because I am a litigator at heart. And I like to go to hearing occasionally. And I was like it was sort of killing me. So I was happy to bring it all the way and I got a few more going into the can this week, then. I think at least one will my gold way.

Dana Jonson 58:49

That will be amazing. Yeah. Well, thank you. And that, that it makes a huge difference for the rest of us. And it definitely helps. helps all of us. You know, when

Meredith Braxton, Esq. 58:58

we talk he's, I was about as pleased as one could be with that decision. It's amazing, even better than I had hoped.

Dana Jonson 59:05

And that's amazing. And the family must've just been beside themselves.

Meredith Braxton, Esq. 59:10

You know, and Sydney. She's, she's happy as a clam of May.

Dana Jonson 59:14

I'm so happy and validation. Yeah, it wasn't her right that.

Meredith Braxton, Esq. 59:20

Yeah. Oh, but she always knew that.

Dana Jonson 59:22

Yeah, she she's smarter than they are.

Meredith Braxton, Esq. 59:24

She is. She really is.

Dana Jonson 59:27

That's often the problem. Well, thank you so much. Meredith. Thank you so much for joining me today. Please don't forget to follow this podcast so you don't miss any new episodes and leave a review and you have a chance. If there's anything you want to hear about or comment on. Please go to my Facebook page special ed on special ed and find me there. I'll see you next time here on special ed on special ed. Have a fabulous day. The views expressed in this episode are those of the speaker's at the time of the recording and do not necessarily reflect the official policy or position of any other agency, organization, employer or company or even that individual today.