Another option for dispute resolution available under the law is a resolution meeting. This method works in conjunction with a request for an impartial due process hearing. Within fifteen calendar days of receiving notice of the parent's’ due process hearing request, the public agency must convene a meeting with the parent and relevant members of the case conference committee to discuss the request and the associated facts. A resolution meeting is an opportunity for the parents and the school to talk about the issues in the due process hearing request to see if they can resolve them without the due process hearing. A parent may bring an attorney to the resolution meeting, and if they do, the school may also bring an attorney. A resolution meeting may not be held if the parent and the school agree, in writing, to waive the meeting or agree instead to use the mediation process [34 CFR 300.510(a)] [20 U.S.C. 1415(f)(1)(B)(i)]. If the parent is unwilling to participate in the resolution meeting, after reasonable attempts have been made and documented, the school may request that the hearing officer dismiss the parent’s due process complaint [34 CFR 300.510(b)(4)].

Citations Referenced in this article

~Angie

A due process hearing is a formal administrative law proceeding, occurring in a quasi-judicial forum, in which parties dispute arguments and evidence before an impartial hearing officer (IHO). Utilization of due process hearing requests is the most formal and litigious way to resolve conflict between families and schools (Bailey & Zirkel, 2015). A parent or public agency may file a due process hearing request relating to any violation of IDEA related to identification, evaluation, or educational placement of a child with a disability. However, when parents initiate a due process hearing request, the basis of their claim is often that the school district failed to provide FAPE in the LRE for their child (Bailey & Zirkel, 2015).

The request for a due process hearing  must allege a violation that occurred not more than two years before the date the party knew, or should have known, about the alleged action forming the basis of the due process complaint [34 CFR 300.507(a)(2)] [20 U.S.C. 1415(b)(6)(B)]. The complaint must include a description of the nature of the problem of the child relating to the proposed or refused initiation or change, including facts relating to the problem. A proposed resolution of the problem, to the extent known and available to the party at the time, must also be included [34 CFR 300.508(a) and (b)] [20 U.S.C. 1415(b)(7)(A)]. The party receiving a due process request must, within ten days, send a response that specifically addressing the issues raised [34 CFR 300.508(f)] [20 U.S.C. 1415(b)(7), 1415(c)(2)(B)(ii)].

The impartial due process hearing is conducted by an independent hearing officer (IHO). A hearing officer must not be an employee of the state or the school and must possess knowledge of, and the ability to, understand the provisions of the Act. The hearing officer must also possess the knowledge and ability to conduct hearings and render decisions in accordance with standard legal practice [34 CFR 300.511(c)(1)] [20 U.S.C. 1415(f)(3)(A)]. At the due process hearing, the parent and the school district have the right to be accompanied and advised by an attorney who may present evidence and cross-examine witnesses (20 U.S.C. 1415(f)(2), 1415(h)).

At the conclusion of the hearing, the IHO makes a determination of the issues, findings of facts, and renders a decision based on federal and state statute and regulations as well as precedents established through other due process hearings, court decisions, or complaint findings (Feinburg, Beyer, & Moses, 2002). The ability of the hearing officer to issue orders is generally limited to determining the sufficiency of a student’s disability classification and the implementation of the IDEA’s requirements. Once a determination had been made, a hearing officer typically orders the district to take corrective action to come into compliance with the law (Sparks, 2014).

Citations Referenced in this article

~Angie

Any individual, group of individuals, or organization may file a complaint alleging violations of federal or state laws which apply to special education programming. A complaint investigation request is one of the options available to parents for resolving concerns regarding their child’s special education programming or services. This article provides a summary of the process as well as a brief review of related literature.

IDEA regulations require states to adopt and implement written procedures to provide an opportunity for an individual or organization to submit a complaint to the state [34 CFR 300.151(a)] [20 U.S.C. 1221e-3]. Parents may choose to file a complaint, alleging violations of IDEA and state special education laws, rather than requesting a due process hearing (Zirkel, 2007). The nature of complaints are inherently procedural and typically do not involve the use of attorneys (Suchey & Huefner, 1998).

A complaint is a claim that the school has violated federal or state special education rules or has failed to comply with an order issued by an independent hearing officer. The complaint must allege a violation that occurred not more than one year prior to the date that the complaint was received by the state [34 CFR 300.153(c)] [20 U.S.C. 1221e-3]. The state must conduct an investigation as to whether the district violated IDEA as the complaint alleged (Zirkel, 2007). At the end of the investigation and review, the state education agency (SEA) issues a written decision, referred to as a finding of fact (Zirkel & McGuire, 2010).  

In comparing the state complaint procedure with mediations and hearings, Suchey and Huefner (1998) noted a number of differences in the process. The scope of a complaint is broader and can exceed the substantive and procedural violations that are typically raised in a hearing which makes the complaint process more conducive to address systematic violations rather than focus on the needs of one student. Like mediation, the costs associated with the complaint process are paid for by the state education agency, not the parent or school district (Suchey & Huefner, 1998).

Citations Referenced in this article

~Angie

Mediation, an option available to families and schools to resolve disputes, is often a mystery to those who have not personally participated in the process. This article provides a summary of the process as well as a brief review of related literature.

Mediation has been a formal option for dispute resolution since the 1997 reauthorization of IDEA. According to CADRE (2004), mediation may be utilized to deal with a broader range of issues in special education than in an IEP meeting. States are required to establish and implement procedures to allow parties to resolve disputes through a mediation process. It is a voluntary process that utilizes a qualified and impartial mediator who is trained in effective mediation techniques to work with the parents and school personnel to resolve their concerns [34 CFR 300.506(a)] [20 U.S.C. 1415(e)(1)]. The purpose of a mediation session is to resolve the dispute through improved communication with this assistance, but not through the decision, of a third party (Zirkel, 2007). Mediation is typically used when there is significant disagreement that the parties are unable to resolve (CADRE, 2004). The mediator assists negotiations between the family and school representatives and attempts to facilitate both sides into an agreeable resolution (CADRE, 2004; Mueller, 2009). Mediation may not be utilized to delay or deny parents their right to an impartial due process hearing [34 CFR 300.506(b)(1)] [20 U.S.C. 1415(e)(2)(A)].

A request for mediation may be initiated by either the parent or public agency, but the mediation process cannot occur unless both parties agree to participate [34 CFR 300.506(b)(1)] [20 U.S.C. 1415(e)(2)(A)]. The cost of mediation is covered by the state agency [34 CFR 300.506(b)(4)] [20 U.S.C. 1415(e)(2)(D)]. If parties resolve dispute through the mediation process, a written and legally binding agreement must be signed by the parent and the representative of the public agency. All discussions that occur in mediation are confidential and cannot be subsequently used as evidence in a due process hearing [34 CFR 300.506(b)(6)] [20 U.S.C. 1415(e)(2)(F)]. When mediation is utilized, litigation has usually been reduced, and parties are able to resolve differences amicably. Although high rates of success with mediation have been noted, participation is not mandatory and the offer to mediate is often initiated too late in the dispute resolution process to be effectively initiated (Feinburg, Beyer, & Moses, 2002).

According to Muller, there are limitations to the mediation process. The request process is viewed as being reactive because it typically occurs once a party has filed a grievance. Mediator’s qualifications and training can also pose a limitation to the practice (Mueller, 2009).  Beyer (1997) reports inconsistent mediation practices across the nation because of varying requirements for the position and training procedures. The IDEA requires that mediators obtain mediation training and demonstrate knowledge in the area of special education, however, these requirements are very flexible and contribute to reported inconsistencies (Mueller, 2009). Markowitz, Ahearn, and Schrag (2003) conducted a study of the mediation provisions and activities of ten states. Findings regarding mediator requirements and training indicated wide variability (Markowitz et.al, 2003). The use of advocates and attorneys during the mediation process is an additional limitation (Feinberg & Beyer, 2000.) The traditional role of an attorney includes aggressive questioning and argument rather than collaboration. Because mediation is meant to provide a forum in which both parties can equally collaborate and negotiate, the mere presence of an attorney hinders the collaborative goal of mediation (Mueller, 2009).  

 ~Angie

Have you ever been part of a case conference committee that just wasn’t moving forward? Have you wondered what could help the team move in a more positive direction? The next time your team is in this spot, consider utilizing the option of a Facilitated IEP (FIEP) meeting. A FIEP is an option available at the request of schools and parents for conflict prevention and resolution. A trained impartial professional facilitator helps the case conference committee by:

• Keeping the meeting focused on the student;

• Ensuring everyone at the table has a voice;

• Encouraging active listening; and

• Participating as a non-committee member, (does not impose a decision)

Using the FIEP process has many benefits such as the improvement of relationships between parents and schools. This service is provided through the Indiana IEP Resource Center. Check out their brochure and flyer to learn more about the process.

Consider using a FIEP if:

• The CCC is spending more time trying to resolve conflicts than working on activities that promote student achievement and success;

• Multiple case conferences have been convened with little or no resolution;

• One or more case conference committee members believe their voice is not being heard;

• There is a lot of new information to be processed or the student's situation is particularly complex;

• Team members would like to create better understanding;

• Team members want to help staying focused on the IEP process; or

• There is a particular disagreement that the team wants to make progress on.

~Angie

What wouldn’t you do for YOUR child to ensure they are happy, healthy, and have the best opportunities? Being a parent is a very difficult job. It becomes even more complicated when your child has special needs. Approaching a team of professionals to advocate for your child’s specific needs can be intimidating and daunting. Parents need support to navigate this unfamiliar and emotional journey.

Advocates provide an invaluable support to families. Having someone to talk to who understands the processes, terminology, and law is a true asset to parents. We’re fortunate in Indiana to have many wonderful parent support organizations. We work most often with advocates from IN*Source, one of the Indiana Resource Networks (IRN). The IRN’s are grant-funded through the Office of Special Education at the IDOE to provide targeted, comprehensive support to schools across the state to improve teaching and learning.

Educators have a tendency to become concerned when they hear an advocate will be attending a case conference. I’m here to reassure you that the participation of a parent advocate is a GOOD thing! I’ve attended many conferences with advocates present. They can serve as a bridge of communication and trust between the family and school. I recommend that you refer parents to IN*Source and welcome the participation of advocates at your conferences. With their help, we’re able to meet our goal of working together on behalf of the children  and families we serve.

~Angie

Would you believe that in a large percentage of due process hearing requests, the special ed director did not know about the situation until the hearing request was filed?!?!  And once it is filed, it almost always costs the district at least $10,000! For my dissertation, I’m studying directors’ experiences in managing dispute between families and schools. Early and proactive communication are essential in both avoiding and resolving conflict.

Have you ever wondered when you should communicate with the special ed director? My response is NEVER hesitate. Your local director, Stephanie, & I are all here to assist YOU!!!! Asking for assistance or escalating a parent concern to an administrator can PREVENT a legal issue!!! The issue doesn’t have to get intense before you reach out for help. I’d prefer to build a relationship with a parent before they are overly upset. When you feel the parent is unsatisfied, I urge you to inform administration so we can build relationships and resolve concerns before they escalate to the point of no return.

~Angie

In our last publication, I shared potential  signs of “troubled waters” between families and schools. One of the best ways to resolve conflict as it begins is to keep the communication flowing. Many of us are parents. What would you not do for your child? It’s a parent’s job to advocate on behalf of their child. And the law has put the parents in that position. Special education is the only civil right that is left in the hands of parents to enforce.

When it comes to advocating for children, emotions can run high. As school district personnel, it’s our job to listen to parents and engage in conversation regarding their concerns. When we shut down communication by drawing a line in the sand, we cut off our opportunity to continue working together on behalf of the child. And guess what…. IT”S ALL ABOUT THE CHILD!

I urge you to utilize your best communication skills, to maintain a rational and professional detachment to these stressful situations (it’s not about you), and to keep communicating with parents. When you’ve gotten to a point at which communications are unproductive, offer the option of providing the parent with an opportunity to speak to someone else, such as the local special education director or myself.

~Angie

The first step in resolving conflict is to identify that it exists. Watch for these signs of discontent and take actions to begin to calm the troubled waters. In the next publication, I’ll share more about communication through the case conference process as our best method for resolving conflict.

~Angie Balsley

Does the looming possibility of “going to due process” ever cause you to consider changing careers? Don’t let fear of the law keep you awake at night and lead you out of this amazing profession! Kids with disabilities need the best and brightest teachers we can provide for them. They need YOU!!!

Venture with me throughout this year on a journey through Conflict Resolution, a new feature of the Earlywood Special Edition. Each publication will highlight the processes and procedures we engage in to resolve conflict between families and schools. By the end of the school year, you will know more about tools to navigate troubled waters as well as the options available to parents for resolving their disagreements. Stay tuned!

~Angie Balsley