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).