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Mediation

Mediation is a process of facilitated negotiation between parents and the school. It is a confidential process that allows parties to resolve disputes without a formal due process hearing. The mediator is a trained, impartial facilitator who helps school staff and parents resolve their disagreement in an informal setting. The mediator facilitates discussion, encourages participants to identify and clarify areas of agreement and disagreement, and helps them generate and evaluate options for a mutually agreeable solution. The goal in mediation, with the assistance of the mediator, is for the school staff and parents to integrate these options into a workable solution that is written into a legally binding agreement. The agreement is then used to execute the agreed upon services for the student.

IDEIA 2004 requires that:

Mediation is available whether or not a due process hearing is requested Mediation must be conducted by a qualified and impartial mediator. Each state must maintain a list of qualified mediators, assign a mediator to a case on a random basis and bear the cost of the mediation process. Mediation discussions are kept confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding. When a resolution is reached, the parties execute a legally binding agreement that is enforceable in a district court. The agreement is binding as soon as it is executed.

The mediation agreement must include the following:

• A description of the agreement.
• A statement that all discussions that occurred during the mediation process are kept confidential and may not be used as evidence in any due process hearing or civil proceeding that occurs later.
• Signatures of both the parent and a representative of the school district who has legally binding authority.
• A statement that the agreement is enforceable in state or federal district court. When successful, mediation can help avoid a due process hearing or other more adversarial procedures. Your state department of education should have information on mediation, including how to make a request for mediation.

Contact your Parent Training and Information Center (PTI) or state education department for more information.

State Complaints

In addition to the dispute options already discussed, IDEA requires every state to have a complaint procedure that allows any organization or individual to file a complaint alleging that a school district (or districts) has violated any of the provisions of Part B of IDEA—or the state’s special education law or regulation. So, state complaints can be filed for a broader range of issues than those allowed for due process complaints. Also, state complaints can also be filed on behalf of a group of students—allowing for complaints to challenge policies or practices that affect a group of students with disabilities.

School district actions that are violations of IDEA and, therefore, could be the basis for a state complaint include:

• Failure to conduct an evaluation within the required timeframe.
• Failure to implement an agreed upon IEP.
• Failure to provide Prior Written Notice before changing a student’s IEP.



State complaints must be filed within one year of the alleged violation and every state must have procedures for filing complaints that conform to the requirement in IDEA. Information on these procedures should be available from your state’s department of education or Parent Training and Information Center.

At a minimum, the state complaint procedures must:

• Provide for an independent, on-site investigation within 60 days after the complaint is filed.
• Give the party that filed the complaint an opportunity to submit additional information (either orally or in writing).
• Provide the local school district the opportunity to respond to the complaint.
• Provide the local school district the opportunity to engage the complaining party in mediation or some other means of dispute resolution.
• Provide for review of all relevant information and issue a written decision that addresses each allegation in the complaint including the reasons for the final decision of the state.
• Include procedures for effective implementation of the state’s final corrective actions ordered to be undertaken by the school district or districts.
• The time in which a complaint must be resolved can be extended through an agreement between the parent (or individual or organization) if all parties agree to use mediation or other dispute resolution options.

Due Process Hearing

Either the parent or the school district may request a due process hearing involving any matter relating to the identification, evaluation or educational placement of the child, or the provision of a free appropriate public education. Your state is required to have a policy on whether the due process hearing is conducted by the state education department or by the local school district. IDEIA 2004 imposes a time limit for requesting a due process hearing. Now, the hearing must be requested within two years of the date the parent or school district knew or should have known about the alleged action that forms the basis of the request for the hearing. (Note: Your state may have its own time-line for filing such complaints. If so, the state time limitation for filing a due process complaint applies.)

There are two conditions in which IDEA’s new two-year time limit does not apply:

• If the school district specifically misrepresented that it had resolved the problem when it had not.
• If the school district did not provide you with information that IDEA requires it provide to you.

Filing a Due Process Complaint

To request a due process hearing, you must provide the school district or its attorney and your state’s department of education with a written notice that includes:

• The name of the student, the home address of the student (or available contact information in the case of a homeless student) and the name of the school the student is attending.
• A full description of the nature of the problem, including any action the school district proposed or took prior to the notice and the facts about that action.
• Your proposal to resolve the problem, if appropriate.

Your description of the nature of the problem must include every issue that you would like to have addressed at the hearing. Unless the school district agrees, you will not be allowed to bring up any additional issues that have not been included in your complaint. However, you may file a separate request for a due process hearing on a different issue.

Examples of issues that may form the basis of a due process complaint include disagreement between the parents and school regarding:

• The eligibility for special education services.
• The method used to deliver the intervention to provide the student’s special education services.
• The educational setting where special education services will be provided to the student.

Each state department of education must have a model form to assist parents in filing a due process complaint that fulfills the requirements of IDEA. Contact your Parent Training and Information Center or state education department for more information.

What Happens Next

When the state department of education receives the due process complaint (or hearing request), it must immediately assign a hearing officer to the complaint.

Within five days of receiving your hearing request, the hearing officer will determine if your request meets IDEA’s requirements for a due process hearing and will notify you in writing.

At the same time, if the school district believes that your hearing request does not meet IDEA’s requirements for a due process hearing, they must notify you and the hearing officer in writing within 15 days of receiving the complaint. Likewise, if the school district initiated the due process complaint, you must notify them within 15 days if you feel the complaint does not meet IDEA’s requirements.

You should also receive a response from the school district within 10 days of the time they received your hearing request, if you have not already received Prior Written Notice from the school district. The response should include:

• An explanation of why the school district proposed or refused to take the action raised in the request for a due process hearing.
• A description of other options that the Individualized Education Program (IEP) team considered and the reasons why those options were rejected.
• A description of each evaluation procedure, assessment, record or report the school district used as the basis for the proposed or refused action.
• A description of the factors relevant to the school’s proposal or refusal.
• On the other hand, if the school district filed the request for a due process hearing, you must respond to them in writing within 10 days, and your response must specifically address the issues raised.

The party (parent or school district) that requested the due process hearing may change its request only if one of the following occurs:

• The other party provides written consent and is given the opportunity to resolve the complaint through a meeting.
• The hearing officer grants permission. This permission can only be granted up until five days before a due process hearing occurs.
• Due process hearings are formal, quasi-judicial procedures in which parents and school personnel present arguments and evidence to an impartial hearing officer or administrative law judge. The hearing officer or administrative law judge is not an employee of the state department of education or the school district.
• Many states have timelines by which a due process hearing must be held. If your state does not have a timeline, IDEA requires that the hearing be held and a final decision reached within 45 days of the time the request was filed. Some exceptions to this timeline apply, so be sure to understand all details of a due process hearing in your state.
• If the hearing officer determines that the school district was at fault, parents may be awarded reasonable attorneys’ fees.
• If the hearing officer determines that a parent’s attorney has requested a due process hearing for reasons that were frivolous, unreasonable or without foundation, the hearing officer may award reasonable attorneys’ fees to the state or school district. The hearing officer may also award attorneys’ fees to the state or school district if either a parent or the parent’s attorney requested a due process hearing for an improper purpose such as to harass, cause unnecessary delay, or needlessly increase the costs of litigation. In such cases, the parent's attorney would be required to pay the award to the state or district.

Settlement Agreements

It is strongly recommended that any Agreements reached as the result of mediation, a resolution session or a due process hearing decision be reviewed by an attorney competent in School Law or Education Law practice and should at the very minimum provide details of all actions and activities to be undertaken by the parties, including any changes to be incorporated into the student’s IEP as a result of the settlement. Be especially mindful of any ‘waiver’ language and its reaching effects. Appealing a Due Process Hearing Decision to the State. Some states have a state appeal procedure that allows parents to file an appeal of a due process hearing decision with the state department of education. Information on this appeal procedure is available through your state department of education or Parent Training and Information Center.

Resolution Session

Within 15 days of the time the parent files a due process complaint, IDEA 2004 requires the school district to hold a meeting between the parents and the relevant members of the IEP team so that the complaint can be discussed. This meeting is called a resolution session. The resolution session must include the parents, relevant members of the IEP team and a representative of the school district who is authorized to make decisions for the district.

Specifics of the resolution session include:

• Unless the parents bring an attorney to the meeting, the school district is not allowed to bring one.
• While not required, parents may bring an attorney whether or not the school district brings one, but parents’ attorney fees for this meeting cannot be reimbursed by the school district.
• If an agreement is reached during the resolution session, it is legally binding and must be signed by both parties.
• Either party has three business days to consider the agreement and void it if they wish.
• If both the parents and the school district agree in writing to waive the resolution session, or to use mediation to resolve their disagreement, the resolution session does not have to be held and the timeline for the due process hearing begins.
• Even if the resolution session is held, if the complaint is not resolved to the parents’ satisfaction within 30 days, the due process hearing may occur.
If the parent fails to participate in the meeting the school district may request that the complaint be dismissed by a hearing officer.
• If the school district fails to hold the meeting or fails to participate in the meeting, the parent may seek the intervention of a hearing officer in order to begin the hearing.

Civil Complaint

If parents are not satisfied with the results of a due process hearing, they may file a civil suit against the state or school district within 90 days of the date of the decision of the hearing officer (or state level review decision) or within the time limit established by state law. Filing a civil lawsuit is the most extreme option available to parents. It requires that parents employ an attorney and go through extensive legal proceedings. However, in some cases it is the only option that will resolve the dispute and ensure that the student receives appropriate supports and services to ensure a free appropriate public education as required by IDEA. Either the parent or school district may file a civil lawsuit. The lawsuit may be filed in federal, district and appellate courts, including the United States Supreme Court.

Final Word

You should use some caution when giving the school written feedback in an attempt to communicate frustration about services for your child. If you have concerns, you should raise them. Just be aware that when you submit a written complaint about your child’s services, this may be construed as a formal complaint or due process request. Filing complaints, whether due process complaints or state complaints as allowed by IDEA, is serious business. Before proceeding, you should be well informed and understand federal and state policies about such actions. Be sure to get all available information regarding all complaint options prior to filing a complaint.