Wednesday, December 26, 2007

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 A link to this website is also listed as Special Education - Dispute Resolution on the left side of this blog under helpful links.

Wednesday, December 19, 2007

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).

Thursday, December 13, 2007

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.

Friday, December 7, 2007

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.

Sunday, December 2, 2007

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.