Tuesday, September 11, 2007

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.

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