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in 2003 the General Accounting Office (GAO) issued a report stating that because most due process hearing requests are withdrawn or the parties settle the dispute before the hearing, the number of special education hearings nationally was low.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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7 Responses

  1. […] 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 […]

  2. Florida IDEA Part C does not have any law adopting Federal due process hearing proceedural safeguards. We filed a due process claim and the ALJ kick it back for lack of jurisdiction. What do we do? THe Fla dept of health claims it is not a party although it is the lead agency. Help!

  3. Paul,

    Thanks for your comment. The IDEA Part C at 20 USC 1439(a) (1) requires that the lead agency assure that there is a process for the timely resolution of administrative complaints by parents. Any party aggrieved by the decision in the administrative process has the right to file suit in state or federal district court. I suggest you find out what administrative process Florida provides for Part C and use that. If unsuccessful the issue can then be litigated. In the alternative, parents also have the right to use the Part B mediation process to resolve Part C disputes.

  4. Randy,

    I am seeking an attorney with Florida Education law expertise in Orlando, FLorida. We recently filed a due process complaint and are expected to go into mediation soon. Any suggestions?

    Thank you.

  5. Dallas,

    Thanks for your comment. You might try contacting The Advocacy Center for Persons with Disabilities, Inc, Florida’s Protection & Advocacy System. If they are not able to assist you directly, I’m sure they can refer you to an attorney in your area. Their website is http://www.advocacycenter.org/. Good luck with your mediation.

  6. I’m a parent and an attorney who is fairly new to this arena. I’m looking for a cite that supports the argument that a parent/child cannot waive his/her rights under IDEA, etc. without specifically and clearly doing so. What has happened is that the parents/child settled another unrelated lawsuit against the school district and signed a standard waiver/release relating to the “incident”. Now the school argues that the family cannot seek remedies provided by IDEA, etc. because they waived/released all rights. Do you think I’ll have to analogize to rights under Title VII, etc. for relevant caselaw? Thank you so much for your suggestions.

  7. Leslie,

    Sorry it took me a while to get back to you. I’m not aware of a cite specifically on point. We did find IDEA cases in which school districts argued parents had either waived their right to tuition reimbursement or attorneys’ fees and courts holding that rights must be expressly waived and not through implication. You might look at Burlington v. Mass Dept of Ed 471 US 359, parent violation of stay-put does not waive right to reimbursement, James T. v Troy 407 F Supp. 827, 45 IDELR 186 settelemnt must clearly state that parents waive attorneys’ fees, and two non-IDEA civil rights cases El Club Del Barrio v United Comty Corps 735 F. 2d 98 (3d Cir 1984) and Torres v. Metro Life Ins Co 189 F 3d 331 (3d Cir 1999, a Title VII case. I hope this is helpful.

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