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Change the child's potential and you will change the world.– Maria Montessori
Sometimes families and schools become conflicted when they are unable to agree on what is an appropriate educational program for your child in order that they obtain meaningful educational benefit and in these circumstances ACCESS! can help. By offering a multi-tiered conflict resolution approach, ACCESS! is uniquely able to work with families, school personnel and school districts, in order to ensure the school has a comprehensive understanding and appreciation for ‘parental’ inputs and concerns with current educational programming, parental reasoning behind disagreement with current educational programming and reasonable parental expectations in moving forward. Once school personnel and school districts better realize and appreciate your specific parental inputs and concerns with current educational programming, they are often more inclined to reasonably resolve conflicts sooner than later and at significantly less cost and expense than otherwise may have been likely incurred. Sometimes, school districts remain steadfast in their position regardless, and in those rare situations, ACCESS! can help as well by providing experienced and reputable collaborative counsel, expert/personal knowledge witness testimony for administrative and/or court (federal and state) proceedings.
A confidential, voluntary process that allows parties to resolve disputes without a formal due process hearing. An impartial mediator helps the parties to express their views and positions and to understand the other’s views and positions. The mediator’s role is to facilitate discussion and help parties reach an agreement—not to recommend solutions or take positions or sides.
A written complaint that can be filed by any organization or individual claiming that a school district within the state has either violated a requirement of Part B of IDEA (the part that contains all requirements regarding the delivery of special education services) or the state’s special education law or regulations. State complaints (generally) must be filed within one year of the alleged violation.
Due Process Hearing
A formal, quasi-legal procedure before an impartial hearing officer or administrative law judge (or panel of judges) who is not an employee of the state education agency or school district involving any matter relating to the identification, evaluation, educational placement or provision of a free appropriate public education to a student with a disability. Both the parents and the school district present arguments and evidence. Requests for due process hearings (generally) must be filed within two years of the alleged violation.
A mandatory meeting that the school district must convene within 15 days of receiving the parents’ due process complaint. The resolution session includes parents, members of the IEP team relevant to the complaint, and a representative of the school district who has decision-making authority.
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 a proscribed finite period of time according to each state’s time limit established by state law.
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:
Contact your Parent Training and Information Center (PTI) or state education department for more information.
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:
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:
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:
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:
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:
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.
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:
The party (parent or school district) that requested the due process hearing may change its request only if one of the following occurs:
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.
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:
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.
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.