Tuesday, January 10, 2017

Procedural Safeguards - The Series Part XI #resolution session

This is the tenth installment in a multi-part series on procedural safeguards under the federal special education law, the Individuals With Disabilities Education Act. I work a lot in this area, so it is near and dear to my heart. Despite the importance of procedural safeguards. however, many issues in this area are misunderstood. I hope that all of the different types of special education stakeholders who read this blog find the information in this series helpful. 

Resolution Session Meetings 

A mandatory resolution session was added to the special education dispute resolution process in 2004. IDEA § 615 (f)(1)(B). Within 15 days of receipt of a due process hearing complaint from a parent, the school district 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 purpose of the resolution session is to permit the parents to discuss their complaint and the underlying facts and to provide the LEA the opportunity to resolve 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. § 615(f)(1)(B)(i). 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. § 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. § 615(f)(1)(B)(iii) and (iv). 

Attorneys who represent parents are barred from seeking attorney’s fees and costs if they decide to participate in the resolution session. § 615 (i)(3)(D)(ii)and(iii).  Unless one of the exceptions apply, the 45 day deadline for the hearing officer decision begins after the resolution period ends. 34 C.F.R. §300.510(b)(2).

Unlike the mediation provisions of the Act, which contain a specific guarantee of confidentiality for any discussions during a mediation session, §615 (e)(2)(G), there is no confidentiality protection for discussions that take place during a resolution session. OSEP specifically rejected the request of several commenters on the proposed 2006 federal regulations 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).

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. § 300.510(b)(3). To avoid the potential perpetual stay-put problem caused by the proposed regulations, the final federal regulations added 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. § 300.510(b)(4). 

34 C.F.R. § 300.510(b)(5), that provides that where an LEA fails to schedule the resolution meeting within fifteen days, or the LEA delays the due process hearing by scheduling the resolution session at times or places that are inconvenient for the parent, or the LEA otherwise fails to participate in good faith in the resolution process, the parent may seek the intervention of the hearing officer to begin the due process hearing. 71 Fed. Register No. 156 at page 46702 (8/14/06). Although OSEP stated that it believes that such occurrences would be very rare, it agreed with commenters that parents should be able to request that the hearing officer begin the hearing process timelines in such cases. 71 Fed. Register No. 156 at page 46702 (8/14/06).

Although the resolution meeting includes “relevant” members of the IEP Team, it is clear that the resolution meting is not an IEP Team meeting. The purpose of the resolution meeting is for parents to discuss their complaint and the underlying facts and for the LEA to have an opportunity to resolve the dispute. § 615(f)(1)(B)(i)(IV); 71 Fed. Register No. 156 at page 46701 (8/14/06). 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).

The purpose underlying the resolution meeting is described in 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). 

Here is an analysis by CADRE of Resolution Meetings- State Supports and Practices.

Here is a 2006 presentation by me concerning the resolution session at a CADRE National Conference. See also,  Memo to Chief Sch Officers Re Dispute Resolution Procedures Under Part B of IDEA 61 IDELR. 232 (OSEP 7/23/13) (Q and A document with a section on state complaints.)

No comments:

Post a Comment