Dispute Resolution Methods - Part III

Continuing our discussion of the four dispute resolution mechanisms under IDEA, this week we will examine mediation and the major changes in mediation under the 2004 reauthorization and the new federal regulations. As previous posts have noted this is my favorite method. Mediation is the only option which allows repair of the relationship between parents and the school district. A good mediator will work on any relationship issues. Because the ultimate concern is the education of a child, a good on-going relationship is critical.



The major change in the mediation section of the law under IDEA’04 is the new requirement that a state must make mediation available to the parties at any time. Section 615(e)(1). The statute previously had only required that mediation be available after a due process hearing had been requested. See 34 CFR Section 300.506(a).
OSEP declined the invitation of several commenters to enact a regulation giving due process hearing officers the power to require mediation in certain cases. 71 Fed. Register No. 156 at page 46694 (August 14, 2006).
A number of changes have been made to the section on mediation agreements. Any agreement must now state that mediation discussions are confidential and may not be used in a subsequent due process hearing or court proceeding. Section 615(e)(2)(F)(i). The IDEA now states that mediation agreements are enforceable in court. Section 615(e)(2)(F)(iii). One thing to watch here is whether a mediation agreement is enforceable in a due process hearing. Given the courts general insistence upon exhaustion of administrative remedies, it is possible that the courts may require an administrative hearing before ruling upon a mediation agreement issue. OSEP noted that although it is not required, nothing prevents parties to a mediation from agreeing to have the mediator facilitate an IEP team meeting. 71 Fed. Register No. 156 at page 46695 (August 14, 2006).
Because mediators are not selected by the parents, states are not required to provide a list of their mediators or their qualifications to the parents or the public in general. 71 Fed. Register No. 156 at page 46695 (August 14, 2006). Mediators must be selected on a random, rotational or other impartial basis, and one such impartial basis would be agreement by the parties. 71 Fed. Register No. 156 at page 46695 (August 14, 2006).
Regarding confidentiality, OSEP agreed to change a regulation in order clarify that all mediation discussions are confidential and may not be used in any subsequent due process hearings or civil proceeding. 34 CFR Section 300.506(b)(8); 71 Fed. Register No. 156 at pages 46695-96 (August 14, 2006). The previous regulation permitting a confidentiality pledge at the outset of mediation was removed, however, OSEP noted that such removal should not be construed as an attempt to prohibit states from requiring such confidentiality pledges. 71 Fed. Register No. 156 at page 46696 (August 14, 2006).
OSEP declined to regulate additional requirements concerning conflicts of interest for mediators, but OSEP did note that it believes that it would likely be improper for a mediator to be subsequently assigned as a hearing officer for the same dispute. 71 Fed. Register No. 156 at page 46696 (August 14, 2006).



CADRE Website: All special education mediators should frequently visit the CADRE website. The Consortium for Appropriate Dispute Resolution in Special Education is an OSEP funded group that encourages mediation, IEP facilitation and other means of special education dispute resolution that are less formal and legalistic than due process hearings. Their excellent website is loaded with helpful articles, materials, trainings and other information and may be found at http://www.directionservice.org/cadre/index.cfm A link to this website is also listed as Special Education - Dispute Resolution on the left side of this blog under helpful links.

Dispute Resolution Methods- Part II

Last week we described the four dispute resolution mechanisms under IDEA. Beginning this week we will periodically provide posts that describe the major changes in the methods under the 2004 reauthorization and the new federal regulations. Because the resolution session is brand new and because we have discussed it in some detail in previous posts, we will concentrate on the other three dispute resolution methods. This week's post will examine the state complaint procedure. Because this mechanism is not contained in the statute, the discussion will involve the analysis of comments in the federal regulations.






State Complaint Procedures
OSEP maintains the state complaint system even though Congress has not specifically provided or addressed a state complaint system in the IDEA. 71 Fed. Register No. 156 at page 46606 (August 14, 2006).
The new regulations give SEAs the ability to award compensatory education or reimbursement as part of the corrective action to remedy after a state complaint investigation. 34 CFR Section 300.151(b). The purpose of this change was to make it clear that states have broad flexibility in making the appropriate remedy in resolving state complaints. 71 Fed. Register No. 156 at page 46602 (August 14, 2006).
The regulations permit, but do not require a state to have mechanisms or procedures, including state complaint procedures, to seek enforcement of mediation agreements or resolution agreements without going to court. 34 CFR Section 300.537; 71 Fed. Register No. 156 at page 46604 (August 14, 2006). This change in the regulations addresses the expense of going to court to enforce such agreements. 71 Fed. Register No. 156 at page 46604 (August 14, 2006). OSEP agreed with commenters who wanted to retain the regulation allowing the use of state complaints to enforce a hearing officer’s decision. 34 CFR Section 300.152(c)(3); 71 Fed. Register No. 156 at page 46605 (August 14, 2006).
OSEP was also persuaded to restore the former regulation that when a state complaint and a due process complaint are filed simultaneously, portions of the state complaint that are not included in the due process complaint must be resolved within the state complaint timelines. 34 CFR Section 300.512(c)(1); 71 Fed. Register No. 156 at page 46605 (August 14, 2006). States must resolve any state complaint, and they cannot remove from their jurisdiction any subject matter simply because it may also be the basis for a due process complaint. 71 Fed. Register No. 156 at page 46694 (August 14, 2006).
While declining to require that states offer mediation for non-parents who file a state complaint, OSEP nonetheless encouraged states to consider mediation and other forms of alternative dispute resolution in these circumstances. 71 Fed. Register No. 156 at pages 46603-04 (August 14, 2006). Where parties agree to mediation and withdraw the complaint, no further action by the state to resolve the complaint is required. 71 Fed. Register No. 156 at page 46605 (August 14, 2006).
Only agreement, and not consent, is required to extend the 60 day time limit for processing complaints. 34 CFR Section 300.504(a); 71 Fed. Register No. 156 at page 46604 (August 14, 2006).The regulations explicitly recognize that mediation as a good reason for an extension of the time limit. 34 CFR Section 300.152(b)(1); 71 Fed. Register No. 156 at page 46604 (August 14, 2006).
Where an issue might be the subject of both a state complaint and a due process complaint, there are different statutes of limitations: one year for state complaints and two years for due process complaints. 34 CFR Section 300.504(a); 71 Fed. Register No. 156 at page 46606 (August 14, 2006). OSEP resisted the efforts of commenters to reinstate the previous regulation permitting a continuing violation exception to the state complaint statute of limitations. 71 Fed. Register No. 156 at pages 46605-06 (August 14, 2006).
When a state has finished processing a state complaint, a party who disagrees with the result may file a due process hearing complaint on the same issue if the statute of limitations has not passed. 71 Fed. Register No. 156 at page 46607 (August 14, 2006).

Dispute Resolution: When Parents and School District Disagree

Some of the work I do in special education law focuses on dispute resolution. Special ed law is new law. Lawyers generally consider anything that came over on the boat from England to be old law; everything else is new. Laws that came into existence in the 1970's are brand new. Lawyers are more comfortable with old law like contracts and property, where there is often a settled "hornbook" answer, and they can advise their clients with relative certainty. So many lawyers are very uncomfortable with special ed issues.

To make matters worse, the procedural rules are strange to seasoned attorneys. In most areas of the law, the aggrieved party must pick a forum. In special ed, however, it is possible for an aggrieved party to pursue four different dispute resolution mechanisms- and this is before going to court. Needless to say, this is very frustrating to lawyers who dislike ambiguity.

In special ed law, the party who disagrees, usually but not always the parent, has four options which may or may not be used in combination. States must make mediation available for such disputes. Since the 2004 amendments, mediation must be available at any point in the process. My view is that mediation is better suited to repairing the long-term relationship of the parties than the other options if the state properly trains, supports and compensates the mediators. The second option is a state complaint in which any entity (including an advocacy group or an out of state non-profit or a parent) can allege a violation of the Act. The state department of education personnel investigate the claim. These procedures vary widely and the quality of the investigations also varies. If a violation is found, the state may impose corrective actions, which now include the possibility of compensatory ed and reimbursement.

The third option is a due process hearing. This is an administrative hearing which closely resembles a trial in court, except that the rules of evidence are more relaxed and there is no jury. A due process hearing officer (it could be me) presides over the hearing, determines procedures, and eventually issues a decision. Encompassed within the due process hearing is the fourth option- the resolution session. When parents file a due process complaint, the school district must convene a resolution meeting within 15 days unless the parties waive the meeting in writing or agree to mediation instead. If the parties settle the dispute and sign an agreement, the agreement is binding except that each party may rescind the agreement within three business days. If the matter does not settle within 30 days, the case may proceed to hearing. As readers of this blog know, I have certain issues with the resolution session. So far, however, resolution sessions are reducing the number of hearings.

Both state complaint rulings and due process decisions may be appealed to federal or state court. Most courts require parties to exhaust their administrative remedies by pursuing a due process hearing before filing a complaint in court, subject to certain exceptions.

For more information on dispute resolution in special education see the CADRE website which is listed as Special Education - Dispute Resolution under helpful links on the left side of the blog.

What Should the Supreme Court Decide Next?

The United States Supreme Court has issued only ten decisions on special education law, including the inconclusive Tom F 4-4 tie. Since the seminal Rowley decision which defined FAPE, and Honig which spelled out stay put and Burlington which established reimbursement for unilateral placements as a remedy for denial of FAPE, some have criticized the Court for tackling tangential issues. Especially lately, the Court has seemed to be nibbling at the edges of the body of special education law. Recent issues have included the burden of persuasion (which only applies in ties); the payment of experts; whether parents without lawyers can represent children with disabilities in federal court; and whether parents of students who never attended public school but who were denied FAPE can seek reimbursement. Moreover, there are two decisions affirming unilateral placements and two decisions interpreting the medical exception to related services.

I am aware that the Court is limited to what is in front of it and cannot literally choose the issues it wants to decide, but I seriously think they are selecting the easier cases. Wouldn't it be nice to get guidance about LRE or the relationship between the seemingly contradictory NCLB and IDEA? How about bullying of kids with disabilities, liability of school officials, or predetermination of IEPs? Maybe resolution on the Tom F issue, or the role of public school teachers and funds in private school special ed? How about the many quirks of IDEA'04 like my favorite the resolution session, or the methodology issues sure to be spawned by the new requirement of "peer-reviewed research to the extent practicable." I haven't even gotten to the new Response to Intervention methods for measuring specific learning disabilities.

Well here's your chance to forecast what the Supreme Court should decide next. We have created a new poll that lets you vote on what hot special education issue you would like to see the high court tackle. The poll is on the left side of this blog. As always, this is not a scientific poll. There is no random selection, indeed only readers of this blog have the right to vote. The margin of error approaches infinity! Nonetheless, I feel that we have the right to vote for what we would like to see. So be sure to vote, and if the Court continues to get into the special education business, we will later compare our forecasts to the actual case selections.

Misunderstanding Tom F. - Who Pays for Special Ed for Private School Students

There seems to be a lot of misunderstanding about the meaning of the recent Tom F. decision by the U.S. Supreme Court. I have talked to a lot of people who feel that the Second Circuit decision, which was affirmed by default, for the Second Circuit only, by the tie vote by the Supremes, requires public school districts to reimburse tuition for many or all private school students. These folks are overlooking one important factor; before tuition may be reimbursed, the parent/student must prove a denial of FAPE. In other words, the school district must either prevent the parents from meaningful participation in the process or else write an IEP that is reasonably calculated to confer no more than trivial educational benefit to the child.


Where a child is denied FAPE, the parents must choose between keeping the child in the public school and seeking remedies such as compensatory education and withdrawing the student and placing him in a private school while seeking reimbursement as the primary remedy. Tom F, and Frank G were rare cases in which the student was never actually enrolled in public school. In both cases, however, the parents requested that the district prepare an IEP and in both cases, hearing officers and state review officers found a denial of FAPE. Frank G and Diane G ex rel Anthony G v. Bd of Educ of Hyde Park 459 F.3d 356, 46 IDELR 33 (2d Cir. 2006); Bd ofEduc of the City School District of New York v. Tom F ex rel Gilbert F 42 IDELR 171 (SD NY 2005). This is an important precondition to reimbursement


I believe that the reaction to Tom F is at least partly colored by the attitude of the federal government lately which seems to many to be that the public schools are the pollution and that private schools are the solution. Given that attitude of Congress, as evidenced by both NCLB and the 2004 reauthorization, and that attitude of OSEP, as reflected in the 2006 regulations, it is easy to understand why public school officials view the decision by the high court as somewhat sinister.


Nonetheless, a parent/student must show a denial of FAPE before reimbursement may be awarded. If hearing officers are awarding reimbursement without first requiring a denial of FAPE, states should provide better training and be more selective when hiring hearing officers. (I admit to a bias here- I train hearing officers and consult about due process hearing systems.) If courts are doing this, districts should discuss possible appeals with their legal counsel.


I hope that this post helps explain this issue. For now, let's all take a deep breath and hope for more clarity from the Court in the future.

Special Education Law 101 - Part V Compensatory Education

As explained in a previous post, I have decided to post a series of Special Ed Law 101 articles to give those outside the SpEd (special education) circle a better chance of understanding what we mean and to get more people hooked on this ever-growing field.

Special Ed Law 101- Part III Compensatory Education

In addition to reimbursement for unilateral placements, the most common relief awarded to a prevailing parent/student in a special education case. A hearing officer awards compensatory education as a remedy for denial of FAPE to the student. The prerequisite again is a denial of FAPE.

The method for determining the appropriate type and amount of compensatory education varies wildly among hearing officers. The most common method has been to determine the period of time equal to the deprivation of FAPE excluding the time reasonably required for the school district to have corrected it. Cumberland Valley Sch. Dist. 106 LRP 20056 (SEA Pa. 2/18/6). See also, Warwick Sch Dist 107 LRP 10896 (SEA PA 12/1/6); In Re Student with a Disability 106 LRP 65292 (SEA NY 10/31/6) (similar quantitative approaches).

The D.C Circuit, however, has developed a preferable qualitative standard for awards of compensatory education in order to place disabled students in the same position they would have occupied but for the school district’s violation of IDEA. Reid ex rel Reid v. District of Columbia 401 F.3d 516, 43 IDELR 32 (D.C. Cir. 3/25/05). The court rejected the hearing officer’s calculation awarding one hour of compensatory education for each day of denial of FAPE. The court also rejected the parents’ request of one hour of compensatory education for each hour of denial of FAPE. Instead, the court adopted a more flexible approach based upon the needs of the child who has been denied FAPE. For example some students might require only short intensive compensatory programs targeting specific deficiencies. Other students may require more extended programs, perhaps requiring even more hours than the number of hours of FAPE denied. Accordingly, the court remanded this matter for the submission of evidence as to the student’s deficiencies resulting from the denial of FAPE. Reid, supra. See also, West Lyon Community Sch Dist v. Northwest Area Educ Agency 107 LRP 30759 (SEA Iowa 5/9/7); Bd. of Educ. of Fayette County v. LM ex rel TD 45 IDELR 95 (E.D.Ky 3/6/6); BC by JC v. Penn Manor Sch Dist 46 IDELR 135 (Pa Commonwealth Ct. 8/15/6); Berkeley Unified Sch Dist 107 LRP 2566 (SEA Calif 12/28/6)(similar qualitative approaches).

Please note that that a prevailing parent/student cannot receive both reimbursement for educational services purchased and an award of compensatory education for the same violation of IDEA. Ambridge Area Sch Dist 106 LRP 60446 (SEA PA 10/2/6) The panel concluded that this would constitute impermissible double recovery.

Beware the New Resolution Session- Part III

In two previous posts, I described the new requirement of a resolution session where a parent files a due process hearing complaint and some of the anticipated problems with this new requirement. Despite my obvious reservations about the new resolution system, it does seem to be causing more settlements. I am a Cubs fan, I have to be an optimist. Nonetheless the potential for disaster looms. More thoughts in this regard:

In response to a commenter who questioned whether a resolution meeting agreement supersedes decisions made by the IEP Team, OSEP stated that nothing in the Act or regulations requires an IEP Team to reconvene following a resolution agreement that includes IEP-related matters. 71 Fed. Register No. 156 at page 46703 (8/14/06).
OSEP declined the request of some commenters to require dispute resolution training for parents, although it noted that nothing in the Act prevents a state or local public agency from offering dispute resolution training for parents or from referring them to organizations that provide such training. 71 Fed. Register No. 156 at page 46701 (8/14/06).
Although the issue came up in the context of parents lacking education or sophistication concerning their right to void a resolution agreement within three days, OSEP seems to rely heavily upon the required notice of procedural safeguards as a sort of equalizer, negating any lack of sophistication or education on the part of parents. 71 Fed. Register No. 156 at page 46703-04 (8/14/06).
In student discipline cases requiring an expedited hearing, the deadlines for the resolution process are changed. The resolution meeting must be convened within seven (rather than 15) days. 34 CFR Section 300.532(c)(3)(i). The resolution period is shortened to fifteen (rather than 30) days. 34 CFR Section 300.532(c)(3)(ii). In response to the concerns of commenters, OSEP clarified that the seven and fifteen day periods begin upon receipt of notice of the parent’s due process complaint. 71 Fed. Register No. 156 at page 46725 (8/14/06).
One important change from the proposed regulations involves the period for disclosure of evidence prior to an expedited due process hearing. The proposed regulations would have allowed states to reduce the deadline for disclosure from five to two business days before an expedited due process hearing. {Proposed Section 300.532(c)(4)}. OSEP was persuaded by the commenters that limiting the disclosure period to two days would significantly impair the ability of parties to prepare for hearing, and, therefore, dropped the proposed exception to the five-day rule. 71 Fed. Register No. 156 at page 46725-26 (8/14/06).
NOTE: there are three kinds of days involved in an expedited due process hearing. The due process hearing must be scheduled within 20 school days of the date the complaint is filed and the hearing officer’s decision is due within 10 school days of the hearing. Section 615(k)(4). The resolution meeting must occur within 7 calendar days and the resolution period is 15 calendar days of receipt of notice of the complaint. Section 300.532(c). The deadline for disclosure of evidence prior to an expedited hearing, like any other due process hearing, is five business days. Sections 300.532(c)(4); 300.512(a)(3).
One problem for many LEAs is how to structure the resolution meeting. Many commenters sought guidance from OSEP on the protocol or structure of procedures for conducting a resolution meeting, including whether an impartial mediator or facilitator should be present. While ducking the issue of the presence of a neutral, OSEP expressly declined to specify a protocol or structure for resolution meetings to avoid interfering with efforts of parties to resolve the complaint. 71 Fed. Register No. 156 at page 46701 (8/14/06). OSEP did approve, however, of the use of alternative means of participation for resolution meetings, such as conference telephone calls or videoconferences, where appropriate. 71 Fed. Register No. 156 at page 46701 (8/14/06).
A similar problem involves how to write an agreement, particularly in view of the restrictions on the presence of attorneys. In response to commenters requesting a model settlement agreement, OSEP declined stating that because the terms of settlements agreements will necessarily vary, it would not be practical or useful for SEAs to develop model settlement agreement forms. 71 Fed. Register No. 156 at page 46704 (8/14/06).

Special Ed Law 101- Part IV Unilateral Placements

Special Ed Law 101- Part III Unilateral Placements

As we saw in the Tom F. case before the Supreme Court, among the relief that a due process hearing officer may award is reimbursement for a unilateral placement by the parents. In the case of Burlington Sch. Comm. V. Dept. of Educ., et. al. 471 U.S. 359, 105 S.Ct. 1996, 556 IDELR 389 (1985), the Supreme Court was faced with the issue of whether the IDEA permitted courts (and hearing officers) to award reimbursement to parents when the IEP developed by the schools is not appropriate and the parent removes the student from public school and places him in a private school that does provide FAPE. Noting that the statutory provisions of the IDEA confer broad equitable powers upon the courts to fashion an appropriate remedy, and the fact that judicial review of IDEA cases often takes years, the Supreme Court held that the IDEA does empower courts and hearing officers to award such reimbursement. Burlington, supra.

In Florence County Sch. Dist. v. Shannon Carter, et. al. 510 U.S. 7, 114 S.Ct. 361, 20 IDELR 532 (1993), the Supreme Court was faced with a unilateral placement case in which the public schools provided an inappropriate education leading to a unilateral placement at a private school that provided an appropriate education for the student but that did not meet some of the requirements of the SEA (specifically state approval of the private school.) The Supreme Court held that courts and hearing officers may award reimbursement in these cases. Carter, supra.

The IDEA now provides that a hearing officer or court may order an LEA to reimburse parents for a unilateral placement if the hearing officer or court finds that the LEA had not made FAPE available to the student in a timely manner prior to the enrollment in the private school. IDEA, Section 612 (a)(10)(C)(ii). Such reimbursement may be reduced or denied if the parents failed at the last IEP meeting to reject the proposed placement and state their intent to enroll the child in private school at public expense, IDEA, Section 612 (a)(10)(C)(iii)(I)(aa); or if they fail to give written notice to the LEA of their rejection of the proposed placement and state their intent to enroll the child in private school at public expense 10 business days prior to removal, IDEA, Section 612 (a)(10)(C)(iii)(I)(bb); or if the parents fail to make the student available for an evaluation, IDEA, Section 612 (a)(10)(C)(iii)(II); or upon a judicial finding of unreasonableness with respect to the actions taken by the parents, IDEA, Section 612 (a)(10)(C)(iii)(III). Reimbursement shall not be reduced or denied for failure to give notice if the school prevented the parent from providing such notice, IDEA, Section 612 (a)(10)(C)(iv)(I)(aa); or if the parents were not provided with written procedural safeguards stating this notice requirement, IDEA, Section 612 (a)(10)(C)(iv)(I)(bb); or if compliance with the notice clause would likely result in physical harm to the child, IDEA, Section 612 (a)(10)(C)(iv)(I)(cc). Within the discretion of the hearing officer or court, reimbursement may or may not be reduced or denied if the parents are illiterate or cannot write in English, IDEA, Section 612 (a)(10)(C)(iv)(II)(aa); or if compliance with this clause would likely result in serious emotional harm to the child, IDEA, Section 612 (a)(10)(C)(iv)(II)(bb). See also, 34 C.F.R. Section 300.148.

Hearing Officer Blues: Decisions, Decisions

I am currently working on two due process hearing decisions. Those of you familiar with special education law understand that I absolutely cannot comment on the facts of the cases.

I do want to talk about the process of decision writing, however. This is one of the most important things that I work with hearing officers on while training them. It is a lot more difficult than it looks. There is generally a voluminous record: multi-volume transcripts and a ton of exhibits. From this jungle of paper we must cull findings of fact. Not everything in evidence, just facts of decisional significance. Then we must apply the facts to the law. The law sounds pretty simple, but in fact the IDEA is a huge statute, with amendments that appear to have been cut-and-pasted in almost random fashion, possibly by monkeys. For example, Section 615 is labeled "Procedural Safeguards," yet there are other procedural safeguards set forth in many other places in the Act, and at least a few (e.g., state complaints, the five-business day disclosure rule) that may be found only in the federal regs. Speaking of the federal regs, they must also be considered, including the 215 odd pages of fine print, tri-column analysis of comments by OSEP. Then of course, state regulations must be studied. It is a difficult and exhausting process.

So if I'm a little grumpy the next few weeks- excuse me.

I should note, however, that I love writing decisions. If the hearing officer does a good job, the decision should result in fair and just application of the law for the parents, the school district and the student. Hearing officer decisions are subject to appeal to court, as they should be, but the hearing officer generally has the first opportunity to fairly apply the law. Judicial review is an important safeguard, and courts are not hesitant to overturn poor hearing officer decisions. For the most part, however, courts are deferential to the decision if the hearing officer has been fair, reasonably thorough and careful in the application of the law. I recently learned that a federal district court has upheld a huge decision I had written a couple of years ago. That may seem like a long time, but unfortunately, it isn't. Even the Supreme Court has commented in the Burlington decision about the very long time it takes to resolve a special ed dispute. This is not what they intended in the mid seventies, but it is where we are now. Once again, we take the law as we find it!

Now, back to work...

Special Education Law 101- Part III

As explained in a previous post, I have decided to post a series of Special Ed Law 101 articles to give those outside the SpEd (special education) circle a better chance of understanding what we mean and to get more people hooked on this ever-growing field.



Special Ed Law 101- Part III


The IDEA definition of FAPE, as explained in Part I of this series, includes both special education and related services. This post involves a discussion of issues pertaining to related services.



Related Services

The IDEA defines related services as follows:
(A) IN GENERAL- The term ‘related services’ means transportation, and such developmental, corrective, and other supportive services (including speech-language pathology and audiology services, interpreting services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, school nurse services designed to enable a child with a disability to receive a free and appropriate public education as described in the individualized education program of the child, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education…
(B) EXCEPTION—The term does not include a medical device that is surgically implanted, or the replacement of such device.
IDEA, Section 602(26). See, 34 C.F.R. Section 300.34.

So a related service is transportation or other developmental, corrective or other supportive services that are required to assist a child with a disability to benefit from special education. If the related service is required for the student to benefit from special education, FAPE requires that the school district provide the related service.

The issue of related services has resulted in two decisions by the United States Supreme Court. The first decision was Irving Independent Sch. Dist. v. Tatro 468 U.S. 883, 104 S.Ct. 3371, 555 IDELR 511 (1984). The Court affirmed the Court of Appeals holding that a procedure known as clean intermittent catheterization was a related service because the student could not attend school without it and, therefore, without the procedure she could not benefit from special education. Tatro, supra. The Supreme Court also affirmed the holding of the Court of Appeals that clean intermittent catheterization is not exempted by the medical services provision because the procedure did not have to be performed by a doctor, it could be done by a layperson with an hour of training. Tatro, supra.

The second decision was Cedar Rapids Community Sch. Dist. v. Garret F. 526 U.S. 66, 119 S.Ct. 992, 29 IDELR 966 (1999). In this case, the Supreme Court held that urinary bladder catheterization and suctioning of tracheotomy plus various monitoring was a related service. Garret F., supra. Applying the “bright line” test of the Tatro decision, the Court held that because the related services did not have to be performed by a physician, the medical services exclusion did not apply and the schools were required to provide the services for the student. Garret F., supra. The Court specifically and emphatically rejected the argument raised by the schools that the cost of providing the services was a defense. Garret F., supra.

Thanks for Your Support-Tenth Place!

I understand that this blog finished in tenth place for best educational blog and tenth place for best business blog in the Blogger's Choice Awards. In order to vote, people had to first register and then reply to an email, so there was some effort involved. Thank you to all the people who voted for this blog. I really appreciate your support.

Supreme Court Decides Not to Decide

Yesterday the U. S. Supreme Court denied certiorari in the case of BD. OF ED., HYDE PARK V. FRANK G., ET UX., Case No. 06-580. Denying cert means that the Court has declined to review the decision of the Circuit Court of Appeals. The Second Circuit decision involved was very similar to the Tom F. case which recently resulted in an anticlimactic 4 to 4 tie. The same issue was presented: whether the parents of a child with a disability who has never received special education from a public school district may receive reimbursement for a unilateral placement of the child in a private school after denial of FAPE by the public school district.

Interestingly, Justice Kennedy once again recused himself (ie, he took no part in the decision to deny cert.) I'm wondering whether he had done some legal work for the school districts involved. Maybe he has a grandchild with a disability? If anybody has another theory, please let me know. The mystery of the recusal of the swingman lives!

We may have to wait a while before we see another high court special ed law decision. Hopefully not too long.

New Supreme Court Decision

The U. S. Supreme Court yesterday in Board of Education of the City of New York v. Tom F. affirmed the decision on the Second Circuit Court of Appeals upholding the ruling that a parent of a student with a disability may seek reimbursement for a unilateral placement in a private school even though the student never received special education services from the public schools. The per curiam decision of the court was based upon the Court being equally divided, 4 to 4, with Justice Kennedy having recused himself. A copy of the one page decision may be found at http://www.supremecourtus.gov/opinions/07pdf/06-637.pdf

Per curiam decisions are decisions issued in the name of the Court rather than under the names of specific justices. In the past, per curiams were used for non-controversial and often unanimous matters. They generally can be cited as precedent and are considered good law, but the tie prevents this decision from being precedential. NOTE: The nature of per curiam decisions may have changed. For example, the Bush v Gore decisions were both per curiam decisions.

Special Education Law 101- Part II

As explained in a previous post, I have decided to post a series of Special Ed Law 101 articles to give those outside the SpEd (special education) circle a better chance of understanding what we mean and to get more people hooked on this ever-growing field.
Special Ed Law 101- Part II

The Requirement of LRE (least restrictive environment)

In addition to the requirement of FAPE, which was discussed in a previous post, the IDEA also requires that to the “…maximum extent appropriate, children with disabilities … are educated with children who are not disabled, and special classes, separate schooling or other removal of children with disabilities from the regular education environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. IDEA, Section 612(a)(5). See, 34 C.F.R. Sections 300.114 to 300.119. This is known as "LRE."

The Supreme Court has not yet ruled on the issue of LRE, but a number of Circuit Courts of appeal have provided some guidance. For example, the Fifth Circuit has developed a two pronged analysis: the first question is whether education of the student with a disability in the regular classroom, with the use of supplemental aids and services, can be satisfactorily achieved, and if it cannot, whether the school district has provided the student with interaction with non-disabled peers to the maximum extent appropriate. Daniel RR v. State Board of Education 874 F.2d 1036, 441 IDELR 433 (5th Cir. 1989). (See decisions in your circuit.)

The special education law, then, requires that a child with a disability be provided a FAPE(free and appropriate public education) and that it be provided in the LRE (least restrictive environment that is appropriate for the child).

Oral Arguments at the U. S. Supreme Court

I was able to attend the oral argument at the U. S. Supreme Court yesterday in the IDEA case of Board of Education of City of New York v. Tom F., Case No. 06-637. Despite my many years practicing law, I am always awestruck when I enter that Courtroom. The highest court in the land does an impressive job of creating a special atmosphere.

When the oral argument began, Justice Kennedy left the Courtroom. Apparently he recused himself from the case and will not take part in the decision. The most active questioners were Justices Alito, Scalia and Chief Justice Roberts. Souter and Ginsburg asked a few questions, and Bryer, Stevens only asked about one area each. Thomas said nothing, although at one point he and Bryer had a very polite private conversation for few moments. I was more surprised by their civility than anything.

The thrust of the questions from Alito, Scalia and Roberts to the school district attorney concerned what purpose could be served by reading the statute to mean that Congress meant to require that a student with a disability be kept in an inappropriate placement for just a short period of time.

The questions that Alito, Scalia and Roberts asked of the parents' attorney and the Solicitor General (who argued in favor of the parents' position) centered on whether the language used by Congress was really ambiguous and whether the intent of Congress was to keep "well-healed" parents who have no real intention of putting their children in public school from obtaining reimbursement.

I was shocked by one argument made by the attorney for the school district. He showed a high level of disrespect for his state's due process hearing system. He stated that at a reimbursement hearing, the parents present a pile of evidence showing all the progress that the student has made at the private school. He said that there is a "dynamic at these hearings" where the hearing officer finds denial of FAPE because the private school provides a better program. I'll admit that I'm a bit biased here because I am a hearing officer for a few states, because I train hearing officers and because I consult with states on hearing system issues (for the record, I do no work for New York), but this is ridicules. If the state hearing officers are not applying the law correctly, the state should provide better training to its hearing officers and better oversight of its hearing system. The strongest argument by the school district was that the new language must mean something, even if only one more temporary hurdle before reimbursement may be claimed.

I was surprised that the parents' attorney and solicitor general did not argue more strongly that denial of FAPE for a short time was very bad- sort of a civil rights based argument. They touched on this but only en route to more elaborate arguments concerning the use of language, most specifically "only if," used by Congress elsewhere in IDEA. Statutory construction arguments can be fairly tedious.

I never try to predict these because at least some justices ask hard questions of the side they intend to support. This helps with decision writing.

It was only one hour, but I had a lot of fun. I can't wait to see the decision, although I predict once again that the impact of the decision will be less tragic than predicted by either party to this proceeding. It would be nice to have the high court give us some guidance on a more general topic- like LRE for example, but we take the law as we get it!

U. S. Supreme Court to Hear Another Special Education Case

The U. S. Supreme Court will hear oral arguments in yet another special education case on opening day of the new term, October 1st- the first Monday in October. The case is BOARD OF EDUCATION OF CITY OF NEW YORK V. TOM F., Docket No. 06-637 .


The issue presented is whether the parents of a child with a disability who has never received special education from a public school district may receive reimbursement for a unilateral placement of the child in a private school after denial of FAPE by the public school district. The case is an appeal from the decision of the US Circuit Court of Appeals for the Second Circuit holding that such reimbursement was an appropriate remedy, 106 LRP 48499 (2d Cir. August, 2006).


The Solicitor General, acting for the Justice Department, has filed a brief on behalf of the parent/student. Numerous groups have filed amicus briefs on behalf of both parties. Among the amicus briefs for the school district were those filed by the National School Boards Association, the National Association of State Directors of Special Education. The parents amici included the Council of Parent Attorneys and Advocates and Autism Speaks.


This will be only the tenth special education decision by the supremes. The recent flurry of activity, this will be the fourth opinion in the last three years, definitely indicates an increased level of interest in this now hot area of law. Although it would be more helpful if the Court provided guidance on a less tangential issue, like least restrictive environment for example, it is still exciting for special education law junkies.


After all what other area of law could bring Scalia and Ginsburg together?

Thanks For Your Blogger's Choice Award Votes

I thank the many of you who have voted for this blog as best education blog and best business blog for the blogger's choice awards. We are now tenth and tied for tenth in these two categories for these prestigious awards.

If you'd like to vote for this blog please register at http://www.bloggerschoiceawards.com/
They'll send you an email and you can then vote.

While you are there, you'll also find a number of other categories full of interesting blogs.

Beware the Resolution Session- Part II

In a previous post, I described the new requirement of a resolution session where a parent files a due process hearing complaint and the anticipated problems in the area of the apparent lack of confidentiality. This post discusses some other odd angles of the new resolution session.
Interestingly the “buyer’s remorse” provision that provides the parties with three days to void a settlement agreement that results from a resolution session has no counterpart in the section concerning mediation. A situation will likely arise in which a party who has voided, or attempted to void, a mediation agreement within three days after it is signed by calling it a “resolution session agreement.” OSEP, the Office of Special Education Programs- the part of the federal Department of Education that oversees special education, refused to enact a regulation requested by commenters that would require parents to be notified orally and in writing that either party has the right to void a resolution agreement within three business days. 71 Fed. Register No. 156 at page 46703-04 (8/14/06). Because of the existing requirement that parents be provided written notice of their procedural safeguards in general, OSEP felt that such additional notice would be overly burdensome. 71 Fed. Register No. 156 at page 46704 (8/14/06).
The new federal regulations retain the general rule set forth in the proposed regulations that the 45 day deadline for the hearing officer’s decision begins after the thirty day resolution period ends. 34 C.F.R. Section 300.510(b)(2). Unlike the proposed regulations, however, the new regulations provide the following three exceptions in which the 45 day period begins the day after one of the following events: 1) the parties agree in writing to waive the resolution period; 2) after beginning mediation or the resolution meeting, the parties agree in writing that no agreement is possible; and 3) the parties agree in writing to continue mediation at the end of the 30 day period, but later, either party withdraws from the mediation process. 34 C.F.R. Section 300.510(c).
OSEP adopted the exceptions to the decision deadline timelines because of the concerns of commenters that it was not appropriate to wait for the end of the thirty day period in these situations. 71 Federal Register No. 156 at page 46702-03 (8/14/06). OSEP also agreed with commenters requesting that the proposed regulations be changed so that the hearing “may” occur (rather than the proposed “must” occur) after the thirty day resolution period because the parties might agree to extend the resolution period or they might settle the matter after the resolution period. 71 Federal Register No. 156 at page 46701 (8/14/06).
The federal regulations provide that where a parent does not participate in the resolution meeting, the timelines for both the resolution process and the hearing will be delayed. 34 C.F.R. Section 300.510(b)(3). To avoid the potential perpetual stay-put problem caused by the proposed regulations, the final federal regulations add a provision that if the LEA is unable to obtain the participation of the parent after reasonable efforts (which now must be documented in the same manner as IEP Team meeting participation), the LEA may, at the conclusion of the 30 day period, request that the hearing officer dismiss the due process complaint. 34 C.F.R. Section 300.510(b)(4).
In the analysis of comments section of the new regulations, OSEP declined to provide guidance as to the level of participation that is required. OSEP noted that if a parent fails to participate in the resolution process, the LEA would need to continue to make diligent efforts to convince the parent to participate throughout the remainder of the 30-day resolution period. 71 Federal Register No. 156 at page 46702 (8/14/06). OSEP agreed with commenters who requested a regulation requiring efforts to convince the parent to participate be documented in the same manner as efforts to obtain participation of a parent in the IEP Team meeting process, and, accordingly, it adopted Section 300.510(b)(4). 71 Federal Register No. 156 at page 46703 (8/14/06).
The participation provision could cause numerous headaches for the special education community. What level of participation is required? Are parents required just to show up, or are they required to bargain in good faith, or is the standard somewhere in between? The decision to provide no guidance on the level of participation likely will create another new battleground for litigation.
Another issue concerns what happens when there is a dispute as to whether the parent “participated.” Will it be necessary to convene preliminary mini-hearings to resolve factual disputes concerning issues of parent participation? A hearing officer is unlikely to resolve contested factual issues without some kind of an evidentiary hearing. Because evidentiary hearings will be needed, the idea of reducing “costly and unnecessary lawsuits” by using the resolution process will likely be thwarted.
OSEP declined the request of some commenters who wanted the parents to be required to notify the school district in advance as to whether the parents would be bringing a lawyer to the resolution meeting. 71 Fed. Register No. 156 at page 46701 (8/14/06). OSEP also opined that because an advocate for a parent/child may be a member of an IEP Team, it was unnecessary to provide in the regulations that an advocate may attend the resolution meeting. 71 Fed, Register No. 156 at page 46700-01 (8/14/06).
The IDEA requires that the parents and the “relevant member or members of the IEP team who have specific knowledge of the facts identified in the complaint” must attend the resolution meeting. Section 615(f)(1)(B)(i). The federal regulations provide that the parents and the LEA determine which team members attend the resolution session. 34 C.F.R. Section 300.510(a)(4). Thus, it seems that either party can designate team members who must then attend the resolution meeting. In addition to disputes as to who has knowledge, this system invites additional problems with notice and scheduling.
OSEP has urged parties to act cooperatively in naming the relevant IEP Team members who will attend because “…a resolution meeting is unlikely to result in any resolution of the dispute if the parties cannot even agree on who should attend.” 71 Fed. Register No. 156 at page 46701 (8/14/06). However, OSEP clarified that either party may designate any IEP Team member as a participant in the resolution meeting. 71 Fed. Register No. 156 at page 46700-01 (8/14/06).
Until there is guidance from the courts, we won’t know the answers to these problems. By then of course, it will be time for a new reauthorization or amendment of IDEA. The ever-growing body of special education law marches on.

Special Education Law 101 - Part I

A recent comment asked what "FAPE" and "IEP" mean. This is a good question. At a recent conference a success story former special education student told the group, "You all speak in alphabet soup." It is a tough habit to break, but the criticism is valid.

As a result I decided to post a series of Special Ed Law 101 articles to give those outside the SpEd (special education) circle a better chance of understanding what we mean.

Special Ed Law 101- Part I
The primary source of special education law is the federal Individuals with Disabilities Education Act, 20 U.S.C. Section 1400, et. seq., hereafter sometimes referred to as “IDEA.” (NOTE: many people refer to the sections of the act as beginning with section 600. Thus “Section 615” would be found at 20 U.S.C. Section 1415, etc.) The regulations promulgated by the United States Department of Education to implement the IDEA are found at 34 C.F.R. Part 300.
The basic requirement of the IDEA is that states must have in effect policies and procedures that ensure that children with a disability receive a free and appropriate public education, hereafter sometimes referred to as “FAPE.” IDEA, Section 612(a)(1).

The IDEA defines “child with a disability” as a child:
(i)with mental retardation, hearing impairments…, speech or language impairments, visual impairments…, serious emotional disturbance, orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and
(ii)who by reason thereof, needs special education and related services.
IDEA, Section 602(3)

The IDEA defines “FAPE” as:
special education and related services that:
(A) have been provided at public expense, under public supervision and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary school or secondary school education in the state involved; and
(D) are provided in conformity with the individualized education program required (…hereunder.).
IDEA, Section 602(9). See also 34 C.F.R. Sections 300.101 to 300.113.

The IDEA defines “special education” as:
Specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability, including
(A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and
(B) instruction in physical education.
IDEA, Section 602(29).

The Supreme Court of the United States issued the seminal decision interpreting the provisions of the IDEA in the case of Board of Education of Hendrick Hudson v. Rowley 455 U.S. 175, 102 S.Ct. 3034, 553 IDELR 656 (1982). The facts of the case were that the student had a hearing impairment. The parents requested that the schools provide a sign language interpreter for all of the student’s academic classes. Although the child was performing better than the average child in her class and easily advancing from grade to grade, she was not performing consistent with her academic potential. Rowley, supra, 102 S.Ct at 3039-3040.

Holding that FAPE required a potential maximizing standard, the District Court ruled in favor of the student. The U. S. Court of Appeals for the Second Circuit affirmed. See, Rowley, 102 S.Ct. at 3040.

The Supreme Court reversed. Rowley, supra, 102 S.Ct at 3052. After a review of the legislative history of the Act and the cases leading to Congressional passage of the Act, the Supreme Court held that the Congress did not intend to impose a potential-maximizing standard, but rather, intended to open the door of education to disabled students by requiring a basic floor of opportunity. Rowley, supra, 102 S.Ct at 3043-3051.

The Supreme Court noted that the individualized educational program, hereafter sometimes referred to as the “IEP,” is the cornerstone of the Act’s requirement of FAPE. Rowley, supra, 102 S.Ct at 3038, 3049. The Court also notes with approval the many procedural safeguards imposed upon the schools by the Act. Rowley, supra, 102 S.Ct at 3050-3051. The Court also cautioned the lower courts (and by implication, due process hearing officers) that they are not to substitute their “…own notions of sound educational policy for those of the school authorities which they review.” Rowley, supra, 102 S.Ct at 3051.

The Supreme Court held that instead of requiring a potential maximizing standard, FAPE is satisfied where the education is sufficient to confer some educational benefit to the student with a disability. Rowley, supra, 102 S.Ct at 3048. Accordingly, the Court concludes that the IDEA requires “…access to specialized instruction and related services which are individually designed to provide educational benefit to the …” child with a disability. Rowley, supra, 102 S.Ct at 3048.

The Supreme Court instructed lower courts (and again by implication, due process hearing officers) that the inquiry in cases alleging denial of FAPE should be twofold: First, have the schools “…complied with the procedures set forth in the Act? And second, is the individualized educational program developed through the Act’s procedures reasonably calculated to enable the child to receive educational benefits.” Rowley, supra, 102 S.Ct. at 3051.

That completes the first installment of Special Education Law 101. In the next installment we'll explain least restrictive environment, or "LRE."

Bullying- New Hot Button Issue

(In response to a request, I am repeating this post which originally appeared on July 24, 2007.)

Bullying is the hottest of hot button issues in special education law.
Generally the claim of the parent is that the student cannot receive the benefit of his IEP if he is being bullied. Bullying is a growing problem that is starting in earlier grades and lasting longer. (San Diego Tribune, 7/9/07). Courts and hearing officers are beginning to hold that disability-based harassment may result in a denial of FAPE. In Shore Regional High Sch Bd. of Educ v. P.S. 41 IDELR 234, 381 F.3d 194, (3d Cir. 8/30/04), the Third Circuit held that the school district’s failure to stop bullying may constitute a denial of FAPE. Bullies constantly called the student names, threw rocks and hit him with a padlock. Despite repeated complaints, the bullying continued and the student eventually attempted suicide. See also, Preschooler II v. Clark County Sch Bd of Trustees 47 IDELR 151, 479 F.3d 1175 (9th Cir. 3/21/7); Stringer v. St. James R-1 Sch. Dist. 45 IDELR 179, 466 F.3d 799 (8th Cir. 5/3/6); Scruggs v. Meriden Bd. of Educ. 44 IDELR 59 (D.Conn. 8/22/05); RP & MP ex rel KP v. Springdale Sch Dist 107 LRP 9778(W.D. Ark 2/21/7); Walden v. Moffett 46 IDELR 159(E.D.Calif 8/28/6).
Other courts have ruled that in certain cases involving bullying, the parent need not exhaust administrative remedies before proceeding to court to pursue possible money damages. See, Blanchard v. Morton Sch. Dist. 420 F.3d 918, 44 IDELR 29 (9th Cir. 8/19/05); Walden v. Moffett 46 IDELR 159 (E.D. Calif 8/28/6); Scruggs v. Meriden 44 IDELR 59 (D.Conn 8/22/05). These issues may well transcend special education. The Columbine tragedy raised our national consciousness concerning bullying and harassment of all kinds in the schools. The issue, however, has a big impact upon special education. Many children with disabilities report that they have been bullied. In one study, the number of disabled children enduring bullies approached 80% (Education Guardian 6/18/07).
Hearing officers and courts should anticipate more cases alleging bullying.

House Leaders Draft Proposed Changes for Reauthoritization of No Child Left Behind

The leadership of the House of Representatives has issued a memorandum outlining changes to be incorporated in the No Child Left Behind tentatively agreed to by the leaders of both parties. Please note that his document is only a draft. You can review the memorandum at http://edlabor.house.gov/bills/MillerMcKeonNCLBDiscussionDraftSummary.pdf

Among the many highlights are the following: permitting states to use growth models in calculating Adequate Yearly Progress; adoption of a maximum "n" size; funding to develop alternate assessments; permitting special education students who exit to continue to be counted in that subgroup for up to three years; maintaining the one percent cap (students with the most severe cognitive disabilities taking the alternate assessment) and two percent cap (students with disabilities taking modified assessments based on modified standards), but allowing certain districts with a high number of students with disabilities to obtain a wavier permitting up to a three percent cap; and a minimization of barriers access to statewide assessments for students with disabilities.

The Congress is inviting comment on this draft. If you have concerns about No Child Left Behind, you should let the House Education Committee hear from you.

Ontario Canada: Comparative Special Education Law

I have a couple of friends who work for the Ontario Ministry of Education. Canada has no national special education law; each province may adopt their own regulations.

Because of my background, I was most interested in dispute resolution mechanisms. In Ontario there is a special education Appeals Board, but school districts are not obliged to implement their decisions. Instead, most special education disputes are contested in the Ontario Human Rights Commission. A denial of FAPE essentially constitutes unlawful discrimination on the basis of handicap under the law there. There is also a major lawsuit pending involving preschool children with autism alleging handicap and age discrimination as well as violations of the Charter of Rights and Freedoms. For more information, see www.edu.gov.on.ca and www.ohrc.ca

This system is very different than our due process hearing (with embedded resolution session) system that we have adopted in the United States. I think that it is beneficial to learn how other countries do things. By reviewing other methods and options, we might find some things we like better. We may conclude that our system is better, or maybe we will see things we can add or subtract to improve the process. So far my study of the Ontario special education system is only just in the very beginning. As I learn more, I'll occasionally pass on information in this blog.

In the meantime I thank Michael and Sandy for taking the time to answer my questions.

New Stuff

I admit that I am new to blogging and that I am only gradually becoming hi-tech. (Oddly people who still say high-tech are predominantly low-tech!) Nonetheless, I have included some new bells and whistles on the blog. Please note that on the left side, there are now a number of buttons where you can vote that you like this blog. Those buttons can also lead you to other interesting blogs. Also, you can search this blog if you want to quickly find one of the archived posts or comments. If you would like to receive our posts by email or by rss feed, you can also subscribe using the links on the bottom of the left-hand column of the blog. Maybe next we will try music and videos- the challenge will be finding music or video relating to special education law!

Beware the Resolution Session- Part I

A brand new mandatory resolution session is added to the due process hearing process by IDEA’04. Section 615 (f)(1)(B). Within 15 days of receipt of a parent request for a due process hearing, the LEA must convene a meeting with the parents, a representative of the LEA with “decision making authority,” and relevant member(s) of the IEP team who have “specific knowledge of the facts identified in the complaint.” The LEA may not bring their lawyer unless the parent has a lawyer. The parties may avoid the resolution session only by waiving the meeting in writing or by participating in mediation. Section 615(f)(1)(B)(ii). ). If the parent/student’s lawyer does attend the resolution meeting, he will not be awarded attorney’s fees for his attendance if the parent is the prevailing party. Section 615(i)(3)(D)(iii). If the LEA has not resolved the complaint to the satisfaction of the parents within 30 days after receipt of the complaint, the hearing may occur and “all applicable timelines for a due process hearing” shall commence. Section 615(f)(1)(B)(ii). If the resolution session results in a written settlement agreement, the agreement is legally binding and enforceable in court, except that if either party suffers from “buyer’s remorse,” they may void the agreement within three business days after it is executed. Section 615(f)(1)(B)(iii) and (iv).
A portion of the conference committee report that discusses the resolution session states that these changes address “unscrupulous lawyers and an overly complex system” that has “led to an abundance of costly and unnecessary lawsuits.” The conference report goes on to explain that the resolution sessions are needed because “...(t)oo often, schools are unaware of parental complaints and concerns until an official complaint is filed and the legal process is already underway.” H.R. 1350 Conference Report, November 17, 2004.
A major issue that is likely to be raised in many due process hearings involves the admissibility of discussions at the resolution session in a subsequent due process hearing. Unlike the mediation section of the Act, which contains a specific guarantee of confidentiality for any discussions during a mediation session, Section 615 (e)(2)(G), there is no confidentiality protection for discussions that take place during a resolution session. I predict that many hearing officers will be faced with objections to testimony concerning what was said at a resolution session. Attorneys wanting to offer the testimony will likely argue that we must assume that Congress knows what it is doing and that Congress specifically restricted the admissibility of discussions only in mediation discussions. Lawyers wanting to exclude the testimony will probably argue that this was an oversight by Congress and that settlement talks should be protected. State law may supply the answer. Many states restrict the admissibility of settlement discussions as a matter of law or court decision to promote the policy of encouraging settlement. Those seeking to admit the testimony, however, will cite the Supremacy Clause, claiming that Congress knowingly omitted confidentiality protection. Unfortunately, the analysis of comments accompanying the new regulations does not provide any help. OSEP specifically rejected the request of several commenters to clarify whether discussions at resolution meetings are confidential because the Act is silent regarding confidentiality. 71 Fed. Register No. 156 at page 46704 (8/14/06). OSEP went on to say that although the parties could negotiate a confidentiality agreement as a part of their written resolution agreement, a state could not require the parties to a resolution meeting to keep the discussions confidential. 71 Fed. Register No. 156 at page 46704 (8/14/06)(emphasis not in original). Unfortunately, the problem is not likely to arise in situations where the resolution process results in an agreement. It is where the parties do not agree that the danger lies. After an unsuccessful resolution meeting, the danger exists that a party may offer testimony at a subsequent due process hearing concerning discussions, or worse yet, misunderstandings of discussions, that took place at a resolution meeting. The analysis by OSEP would seem to support the argument that discussions at resolution meetings generally are admissible in subsequent due process proceedings. The danger is that if discussions are not confidential, there is likely to be a chilling effect upon the parties’ willingness to speak freely, and thus upon resolution as well.
Although the caselaw is only beginning to trickle in, at least one state review officer has held that discussions at a resolution meeting are NOT confidential. See, Homer Central Sch Dist 106 LRP 65707 (SEA NY 10/27/6)(SRO affirms HO decision to admit discussions from a resolution meeting at a subsequent due process hearing. SRO concluded that discussions at a resolution meeting are not confidential as a matter of law.) Stay tuned for some interesting decisions.

Thanks Utah!

I recently had the pleasure of getting to spend a chunk of time in beautiful Ogden and Salt Lake City, Utah. I presented at the annual Utah Special Education Law Institute, and I conducted a training for hearing officers, mediators and facilitators for the state Office of Education. I also did some work on a pending due process in Utah in which I am serving as the hearing officer.
I want to thank the folks from the USOE who took such good care of me. The conference was very high quality and enjoyable. The training went well. Thanks to all.

By the way, the bloggers choice award voting is going very well. Last time I checked, this blog was No. 10 for best educational blog and No. 11 for best business blog. Please give us your vote today by registering at http://www.bloggerschoiceawards.com/ and then following up their email with your vote.

The "M" word Resurfaces

IDEA’04 imposes a new requirement that the special education and related services and supplementary aids and services to be provided to the child under an IEP must be based on “peer-reviewed research to the extent practicable.” Section 614 (d)(1)(A)(i)(IV). This change raises a number of questions and potential problems. The new phrase is not defined anywhere in the law. The phrase “peer-reviewed research” may have one meaning in academic communities, but lawyers will argue over what it means in the context of special education. In its analysis of comments to the new federal regulations, OSEP declined to define the phrase “peer-reviewed research.” 71 Fed. Reg. No. 156, at page 46664 (8/14/06). The phrase “to the extent practicable” is an odd choice for statutory language; it is rare for the Congress to impose a requirement, but qualify the requirement with what may be a built in excuse for noncompliance. OSEP also declined to define the phrase “to the extent practicable” although it noted that the phrase generally means that services and supports should be based upon peer-reviewed research to the extent that it is possible given the availability of peer-reviewed research. 71 Fed. Reg. No. 156, at page 46665 (8/14/06).
The United States Supreme Court has had a long-standing admonition to hearing officers and courts that they are not to substitute their notions of preferable educational methodology for those of school personnel. In Board of Educ., etc. v. Rowley 553, IDELR 656, 458 U.S. 175, 207-208 (1982), the Court set forth the “M” word prohibition as follows:

In assuring that the requirements of the Act have been met, courts must be careful to avoid imposing their view of preferable educational methods upon the States... The primary responsibility for formulating the education to be accorded a handicapped child, and for choosing the educational method most suitable to the child's needs, was left by the Act to state and local educational agencies in cooperation with the parents or guardian of the child. .. In the face of such a clear statutory directive, it seems highly unlikely that Congress intended courts to overturn a State's choice of appropriate educational theories in a proceeding conducted pursuant to § 1415(e)(2).30
We previously have cautioned that courts lack the "specialized knowledge and experience" necessary to resolve "persistent and difficult questions of educational policy." (Citation omitted) We think that Congress shared that view when it passed the Act. As already demonstrated, Congress' intention was not that the Act displace the primacy of States in the field of education, but that States receive funds to assist them in extending their educational systems to the handicapped. Therefore, once a court determines that the requirements of the Act have been met, questions of methodology are for resolution by the States.
Board of Educ., etc. v. Rowley, supra. (emphasis added)

The new statutory language, “peer-reviewed research to the extent practicable,” seems to be an invitation for hearing officers and courts to intrude into the previously forbidden arena of methodology. Parents are likely to argue that the student was denied FAPE because the methodology employed by the school in not based on peer-reviewed research. Some methodologies, like applied behavioral analysis, have a significant body of research. School officials who have chosen to ignore the provision may argue that peer-reviewed research is not practicable. A new cottage industry of expert witnesses in the field of what is not peer-reviewed research is likely to be born. OSEP has stated that a district is not required to provide the methodology with the greatest body of research in order to provide FAPE, and that there is no requirement that an IEP include specific instructional methodologies. 71 Fed. Reg. No. 156, at page 46665 (8/14/06). OSEP has not, however, provided much useful guidance. Hearing officers and courts will begin to rule upon such issues, and there will likely be a large number of cases. Districts and parents will need to become familiar with these rulings.

Bullying- New Hot Button Issue

Bullying is the hottest of hot button issues in special education law.
Generally the claim of the parent is that the student cannot receive the benefit of his IEP if he is being bullied. Bullying is a growing problem that is starting in earlier grades and lasting longer. (San Diego Tribune, 7/9/07). Courts and hearing officers are beginning to hold that disability-based harassment may result in a denial of FAPE. In Shore Regional High Sch Bd. of Educ v. P.S. 41 IDELR 234, 381 F.3d 194, (3d Cir. 8/30/04), the Third Circuit held that the school district’s failure to stop bullying may constitute a denial of FAPE. Bullies constantly called the student names, threw rocks and hit him with a padlock. Despite repeated complaints, the bullying continued and the student eventually attempted suicide. See also, Preschooler II v. Clark County Sch Bd of Trustees 47 IDELR 151, 479 F.3d 1175 (9th Cir. 3/21/7); Stringer v. St. James R-1 Sch. Dist. 45 IDELR 179, 466 F.3d 799 (8th Cir. 5/3/6); Scruggs v. Meriden Bd. of Educ. 44 IDELR 59 (D.Conn. 8/22/05); RP & MP ex rel KP v. Springdale Sch Dist 107 LRP 9778(W.D. Ark 2/21/7); Walden v. Moffett 46 IDELR 159(E.D.Calif 8/28/6).
Other courts have ruled that in certain cases involving bullying, the parent need not exhaust administrative remedies before proceeding to court to pursue possible money damages. See, Blanchard v. Morton Sch. Dist. 420 F.3d 918, 44 IDELR 29 (9th Cir. 8/19/05); Walden v. Moffett 46 IDELR 159 (E.D. Calif 8/28/6); Scruggs v. Meriden 44 IDELR 59 (D.Conn 8/22/05). These issues may well transcend special education. The Columbine tragedy raised our national consciousness concerning bullying and harassment of all kinds in the schools. The issue, however, has a big impact upon special education. Many children with disabilities report that they have been bullied. In one study, the number of disabled children enduring bullies approached 80% (Education Guardian 6/18/07).
Hearing officers and courts should anticipate more cases alleging bullying.

We've Won a Blog of the Day Award!

We are pleased to announce that we have won a Blog of the Day Award for July 15, 2007. We understand that it was a Serendipity Sunday Award. We are now proudly displaying the Blog of the Day brag badge. Thanks for the award. Here is the Blog of the Day link http://blogofthedayawards.blogspot.com/

Please remember that we are still in the running for best education blog and best business blog for the blogger's choice awards. We are getting votes for these awards. If you'd like to vote, you need to register at this site http://www.bloggerschoiceawards.com/

Thanks for your support. Also remember that you can vote on the new poll feature on the bottom left portion of this blog. Lotsa voting going on.

NEW Internet Poll: Is the due process system fair?

We now have the capability to add an occasional poll to this blog.

The first poll is about the state due process systems. Do you think that the hearing system is fair? Please register your opinion on the poll found near the bottom left-hand side of this blog.

We are not pretending that this is a "scientific poll," but we suspect that the results will be interested. Let us know how you like this new feature.

JoLeta Reynolds Award

JoLeta Reynolds is one of the best people on the planet. Many folks who work in special education know her well. She is a senior policy advisor for OSEP. She was instrumental in the re authorizations of IDEA, wrote the federal regulations after the 1977 reauthorization of IDEA and she was key in the writing of the new regs. She helps everybody who has a question. Many times she has helped me personally understand the nuances of the regs; she is very patient and supportive of me. She has persevered through obstacles that would stop many of us in our tracks. She is great!

A couple years ago, LRP, the company that publishes special ed decisions, started the JoLeta Reynolds award. If you know somebody who works for state, federal or local education agencies who has had an awesome impact upon the lives of children with disabilities, consider nominating them for the award. Here is a link: http://www.lrpinstitute.com/joleta.html

Being nominated for this prestigious award is a great honor. People who have a big impact upon special education deserve recognition. Once again, JoLeta makes the world a better place.

We're Nominated for Blog Awards

I am honored to report that this blog has been nominated for a blogger's choice award in the categories of best education blog and best business blog. If you want to cast us a vote, or if you like lotsa blogs, look at this website:

http://www.bloggerschoiceawards.com/

Thanks and keep on bloggin'.

Interviews

I enjoy being interviewed on special education law topics. Some of my friends have asked for links to a few of these interviews.

The following relate to the Winkleman decision by the Supreme Court:
http://www.edweek.org/ew/articles/2007/06/06/39scotus.h26.html?tmp=1732161608

http://www.specialedconnection.com/LrpSecStoryTool/index2.jsp?contentId=3771762&query=(({GERL}))&chunknum=1&topic=Main&listnum=0&offset=6


Supreme Court watchers will be watching the direction that the Roberts Court will take in special education cases. They are definitely interested in the topic.

Are State Complaints Authorized by IDEA

I've been researching state complaint procedures. I was surprised to learn that the Individuals With Disabilities Act does not create state complaints. They are apparently a creature of the federal regulations.

I'm amazed that somebody hasn't challenged the state complaint system. Special Education, unlike most other areas of law, offers the parties multiple dispute resolution mechanisms for the same dispute. For example a parent could file a state complaint. If unsatisfied with the result, the parent could request mediation. If still unsatisfied the parent could file a due process complaint, which now includes the resolution meeting procedure. This is before any appeal.

Given the fact that the statute has been reauthorized and amended in the 20 some years since the state complaint system has been around, yet it still doesn't officially sanction the state complaint procedures, I'm surprised that some disgruntled party has not taken on the very existence of the complaint system

A Blog, by Any Other Name, Is Not as Sweet

In telling some of my friends about this blog, I've had a realization. The use of blogs is age sensitive. Most people my age are uncomfortable with blogs. Many have never read a blog at all. Some do not know what a blog is.

Some of my younger friends, on the other hand, are addicted bloggers. A few discovered this blog on their own. All of them are comfortable with the idea of blogging. A number have blogs of their own.

So bear in mind that I'm being very brave in this blogging effort, and keep in touch.

Good Interview

I was interviewed by Education Week yesterday concerning the Winkleman decision. Apparently the word is out that I like to talk about this stuff!

It was a good interview. I was reminded of how much I enjoyed watching the oral arguments at the Supreme Court in Winkleman. Truly, democracy in action.

The writer asked one question that surprised me. He thought that because I do a lot of work for state departments of education, my orientation would be pro district. I told him that as a long time hearing officer and mediator, I view myself as impartial. (By the way, I hate the word "neutral." It has the same connotations as neutron, or worse, neutered. Many of my mediator friends never call themselves "neutral" because they find the people have a bad reaction.) I find that the state ed departments, at least those I work with, really try to be fair to parents as well as school districts. I wonder if others share this perception?

Will Winkleman bring more IDEA lawsuits?

Since the Supreme Court decision in Winkleman, many have predicted a big increase in special ed lawsuits. The holding of Winkleman was that parents may appear in federal court to represent their children and themselves without a lawyer.

I'm not sure that this ruling will be a catalyst for a large upswing in new filings. Parents already had the right to bring the administrative, or "due process," hearing without a lawyer. The Supreme Court decision applies only to appeals in federal court. Also, it is difficult enough to navigate the federal court procedures for lawyers. I don't think that many unrepresented parents will be able to be successful. On the other hand, many parent advocates seem to be psyched up by a "win" in the Supreme Court. The last two decisions by the Supremes were largely seen as anti-parent by these groups.

This is my new blog, welcome.

In this space, we will be discussing special education law topics.

To break the ice, let's discuss the viability of the Rowley decision in the NCLB IDEA'04 era. Most lawyers I've talked to think that the Rowley standard is the closest thing to hornbook law that we have in special education.

Rowley basically establishes the standard for the free and appropriate education required by the IDEA. An IEP must have been developed with appropriate opportunity for participation by the parents and the IEP must be reasonably calculated to provide educational opportunity for the child with a disability.

One federal court in Washington state has rejected the Rowley standard. The Court held that Rowley was decided under the former EHA, the predecessor of the IDEA, and that the new standard should look to provide equal opportunity for kids with disabilities. The Court ruled that Rowley set the bar too low.

What are your thoughts?