We Can Work it Out Part III: Using the Resolution Process to Resolve Disputes Under The IDEA 2004

    As yet another way to resolve disputes before a due process hearing, the IDEA 2004 added a resolution process. Once a due process complaint notice is filed, the school district is required to convene a resolution meeting between the parents and the relevant members of the IEP team. The purpose of the resolution meeting is for the parents to discuss the due process complaint and give the school district an opportunity to resolve the dispute.

     The relevant members of the IEP team are those members of the team who have specific knowledge about the facts identified in the due process complaint. The parents and the school district will mutually determine which members of the IEP team are relevant. Additionally, the meeting must include a representative of the school district who has the authority to make decisions on behalf of the school district.  

      The meeting, however, may not include an attorney representing the school district unless the parents bring an attorney to the meeting. So, the parents have an opportunity to meet with school staff without the school district’s attorney being present. If parents choose to bring an attorney to the resolution meeting, then the school district may also bring its attorney.  

     Moreover, should parents choose to be represented by an attorney at the resolution meeting, the parents may not be awarded attorneys’ fees for their lawyer’s time  attending the meeting. The resolution meeting is required unless the school district and the parents agree in writing to waive it or the two sides agree to use mediation instead. If the dispute is resolved through the resolution meeting, the parents and the school district will develop and sign a written settlement agreement. Similar to the mediation agreement, the resolution settlement agreement is enforceable in State court or United States district court. But, either the parents or the school district have three business days after the agreement is signed to void, or get out of, the agreement.  

     Finally, from the parent’s perspective, the resolution session is essentially another IEP meeting but, perhaps, without the school district’s attorney. On the other hand, the mediation process involves an outside person, the mediator, who can help facilitate resolving the dispute. For that reason, parents and the school district might choose to use the mediation process instead of the resolution process. Using either process will be beneficial if disputes are resolved without the need for a due process hearing.

We Can Work it Out Part II: Using Mediation to Resolve Disputes Under The IDEA 2004

 The last post began a short series of articles on dispute resolution under the IDEA 2004. That article ended with the requirements for filing a due process complaint notice. This post covers mediation and next week’s post will cover the new resolution process.

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       Mediation is a process in which an objective and impartial third party (the mediator) works with both sides of a dispute to help them reach an agreement to resolve the dispute. Unlike a hearing officer, the mediator does not weigh evidence and resolve legal issues. Under the IDEA, the mediator’s job is to help the parents and school district reach an agreement. In that process the mediator will meet with each side to the dispute, separately or together (depending on the style of the mediator) and try to resolve disagreement.

       For the mediation process to work, the participants need to be able to speak freely. Thus, the discussions that occur in mediation under the IDEA are confidential.  Prior to the IDEA 2004, mediation agreements resolving special education disputes were not legally binding. The agreements were voluntary and each side relied on the other’s good will to comply with the agreement. Congress, however, received comments that since mediation agreements could not be legally enforced, parents and school districts were sometimes reluctant to use the process. Thus, in the IDEA 2004, Congress required that if an agreement is reached in mediation, it can be enforced in State court or a United States district court.  

Mediation can be used to resolve any special education issue, including issues that occur before a due process complaint notice is filed. So, mediation can be used to resolve disagreements without requesting a due process hearing or it can be used to settle disputes after a hearing has been requested. Moreover, to encourage mediation, the IDEA requires that the state education agency  maintain a list of qualified mediators and bear the cost of the mediation process.

So, mediation does not cost the parents or the school districts other than their time in the mediation. Mediation is voluntary and both parents and the school district must agree for the mediation to occur. Additionally, the state education agency must assure that mediation is not used to deny or delay a parent’s right to a due process hearing. Thus, by agreeing to mediation neither the parents nor the school district give up the right to pursue a due process hearing if the mediation is unsuccessful.

      Finally, while this article focuses on resolving disputes regarding children with disabilities under Part B of the IDEA (services for children aged three to twenty-on), mediation can also be used to resolve disagreements under Part C (services for infants and toddlers from birth through age two).  

We Can Work it Out: Using the IDEA 2004 to Resolve Disputes Before They Get to Hearing

My posts this week and next week will cover the IDEA 2004 formal procedures for resolving disputes prior to a due process hearing. This week I’ll cover the due process complaint notice and next week discuss mediation and the resolution process. A subsequent post will cover the due process hearing.   

Since 1975 the Education for All Handicapped Children Act (now the Individuals with Disabilities Education Act or IDEA) has provided parents the right to a due process hearing to resolve disagreements over special education services to children with disabilities. A due process hearing is a very formal procedure to resolve disputes. In a due process hearing an impartial hearing officer (IHO) makes a decision in favor of the parents or the school district after each side has presented evidence at the hearing. Parents and school districts have very specific rights or safeguards in due process hearings including the right to present evidence and to be advised by an attorney. 

      Thus, due process hearings, similar to a trial, are formal, can be costly, adversarial, and time intensive. To avoid the cost, time, and stress of due process hearings, parents and school districts resolve most special education disputes before they go to a hearing. In fact, in 2003 the General Accounting Office (GAO) issued a report stating that because most due process hearing requests are withdrawn or the parties settle the dispute before the hearing, the number of special education hearings nationally was low. For example, in the year 2000 the GAO found that there were only about 5 hearings per 10,000 special education students. In 2004, to further encourage resolving special education disputes, Congress amended the IDEA by adding to the dispute resolution process a due process complaint notice, a resolution process, and made mediation agreements legally binding.  

 Due Process Complaint Notice

      The IDEA requires that whenever a party, either a parent or a school district, wishes to request a due process hearing to resolve a special education dispute, they first must provide the other side with a due process complaint notice. The due process complaint notice tells the school district (or the parent if the school district requests the hearing) who the student is, the school the student attends, what the issues are, and suggests ways to resolve the dispute. As the IDEA 2004 was being drafted, some school administrators commented to Congress that districts frequently received requests from parents for a due process hearing when the districts were unaware that a dispute even existed.     

Thus, the due process complaint notice gives the school district information about the dispute and a chance to resolve the disagreement. While parents may feel it is burdensome to have to draft this notice in order to have a hearing, putting the problem and possible resolution in writing can help focus the issues and might lead to a resolution.

      The content of the due process complaint notice is very important because issues cannot be raised at the due process hearing if they were not identified in the due process complaint notice. This is true unless the other side in the hearing agrees to let the new issues be addressed at the hearing. There is a process for amending the due process complaint notice to add new facts and issues. Moreover, if a parent wanted to add issues that were not in the due process complaint notice and the school district did not agree to let those new issues into the hearing, the parent could request a separate hearing on the new issues.  In that event, the school district might agree to let the issues be heard in the original hearing rather than having two hearings. 

     Finally, State education agencies are required to develop model forms to help parents and school districts file due process complaint notices, but using those model forms is not required so long as the notice contains the information required by the IDEA 

       In summary, the due process complaint notice requirment was added to the IDEA to avoid school districts being surprized when they recive a request for a hearing from a parent. It is hoped that by letting the school district know the nature of the disagreement and a possible resolution, the dispute can be resolved and a hearing avoided. Thus, the due process notice must be sent or a hearing cannot occur.  

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