Tuesday, August 21, 2007

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.


    In Re: Amherst-Pelham Regional School District v. BSEA # 07-2259 &
    Student BSEA # 07-3796
    Relying on language from decisions issued by Hearing Officer Oliver and this Hearing Officer, the school interpreted the requirement to hold a resolution meeting as a pre-requisite to the Parents being able to proceed to hearing, but not as a procedural requirement for the school district. Amherst further argued that there is no penalty under the regulations when a school district fails to conduct the resolution session other than the fact that it is deemed waived. Amherst's interpretation is found to be correct and consistent with the IDEA mandates regarding Resolution Sessions. (See 20 U.S.C. §1415(f) (1)(B)9 et seq.) Furthermore, Amherst's position is consistent with the pertinent IDEA regulations found at 34 CFR § 300.510(b)(5),
    If the LEA fails to hold the resolution meeting specified in paragraph (a) of this section within fifteen days of receiving notice of parent's due process complaint or fails to participate in the resolution meeting, the parent may seek the intervention of a hearing officer to begin the due process hearing timeline.
    Rule I F of the Hearing Rules for Special Education Appeals, provides as follow:
    Under the IDEA, a hearing cannot be held in response to a parent's hearing request until
    • The school district has convened a resolution meeting
    within fifteen (15) days if the date of receipt of the
    hearing request;10 or
    • The parties have agreed to participate in mediation in
    lieu of the resolution meting; or
    • The parties have notified the BSEA in writing that they
    have waived the resolution session.
    If the school district has not resolved the complaint to the satisfaction of the parent within thirty (30) days of the receipt of the hearing request, the hearing may occur, and all of the applicable timelines for a due process hearing under this part shall commence. (If the parent does not participate in the resolution meeting or participate in mediation in lieu of the resolution meeting, the hearing will be delayed until the meeting is held.)
    Under the regulations and BSEA Rule I F, the resolution meeting is the final informal opportunity the parties are given to settle their differences prior to engaging in the due process hearing. This requirement applies only to hearing requests initiated by parents and in essence prevents parents from proceeding to hearing until, and unless they have participated in said meeting, have waived it together with the school or have opted for mediation instead of the resolution session. Footnote # 1 of the BSEA Hearing Rules for Special Education Appeals explains that the result of a school district's failure to convene the resolution meeting within fifteen days of receipt of the request for hearing is that the meeting is deemed waived, and this pre-requisite cannot be used by the school district to delay the timelines and prevent parents from proceeding to the hearing11. This was explained to Parent during the conference call of February 26, 2007 and at the beginning of the hearing on March 6, 2007. Amherst is correct that it has done nothing illegal in not convening the resolution meeting. I concur with Hearing Officer Oliver that nothing in the law or regulations describe a default procedure. In Re: Ann, BSEA # 06-1175, Parent's Motion for a Default Judgment (2005, Oliver). The IDEA and the federal regulations talk about penalties to the parents regarding the resolution session, but imposes no such penalty on a school district that fails to convene the session, other than relieving the parent from his/her duty to participate as a pre-requisite to the due process hearing. See In Re: Mount Greylock Regional School District, BSEA # 06-6459, 12 MSER 177 (2006). Furthermore, no prejudice to Parents resulted from Amherst not convening the resolution meeting.

    In Re: Student v. BSEA # 06-6459
    Mount Greylock Regional School District
    Ruling on School’s Request for Postponement of the Hearing, Student’s Opposition to the Postponement Request and Student’s Motion for Advanced Scheduling

    If a resolution session is going to provide parties a real opportunity to resolve concerns, both sides need to go into it knowing the position of the opposing party. A response to a hearing request is therefore most effective when it is available prior to the resolution meeting. Thereafter, its purpose changes and it becomes a litigation tool more than a statement of a party position for purposes of resolution.
    Since Mount Greylock was on notice of the aforementioned deadlines and since it failed to convene the resolution meeting within the 15 days allowed by the statute, Student may proceed to hearing without participating in a resolution session. 1
    1 “If the local educational agency has not resolved the complaint to the satisfaction of the parents within 30 days of the receipt of the complaint, the due process hearing may occur, and all of the applicable timelines for a due process hearing under this part shall commence.” 20 U.S.C. § 1415(1)(B)(ii).

    There is nothing under IDEA 2004 which delineates any ramifications for failing to respond to Parents’ Hearing Request within the ten day framework. There are no default procedures under federal or state special education law, the Massachusetts Administrative Procedures Act or the formal rules of state adjudicatory practice and procedures (801 CMR 1.01).

  2. Thank you Anthony for these two interesting decisions concerning the new resolution session.