When a dispute arises between a parent and the school in an Individualized Education Program (IEP) meeting there are a few methods that can be utilized to work out the disagreement. Most School Districts will have at least one Informal Dispute Resolution (IDR) system in place that can be employed to work out the dispute. IDR will look different in every school district but most likely it will involve a meeting or phone call with a District employee who was not at the original IEP meeting discussing the disagreement and trying to come to a successful resolution. IDR is not mandatory and can be skipped if the parents want to exercise their rights under the Individuals with Disabilities Education Act (IDEA) procedural safeguards which could include Mediation or Due Process.
A mediation is a meeting facilitated by a mediator used to find a peaceful settlement of the disagreement prior to starting costly litigation. The Requirements are:
- Mediation is voluntary for both parties.
- Mediation may not be used to delay or deny a parent’s right to a due process hearing or to deny other rights guaranteed under the IDEA.
- Mediation must be conducted by a qualified and impartial mediator trained in effective mediation techniques.
- Mediation can be on its own (informal mediation) or part of a due process complaint (formal mediation).
If a resolution is reached at the mediation, a legally binding settlement agreement will be signed by all parties involved. Once a settlement agreement is executed a new IEP meeting must be called to implement the services outlined in that agreement. If a resolution is not reached the next step would be a Due Process Hearing.
Due Process Hearing
A Due Process Hearing is typically held by the state department of education and presided over by an impartial hearing officer. The Due Process complaint form must outline the complaint and the proposed resolution. The other party has the right to respond and can file a Notice of Insufficiency (NOI) if they feel the complaint does not have enough information to proceed. Since the School District will involve an attorney it is recommended that you consult with an experienced Special Education Attorney before filing for due process.
If the Parents file for due process they have the burden of proof and a resolution session must be held between the School District and the Parents prior to the hearing. This resolution session can be waived if both parties agree and a formal mediation can be held instead. If a settlement is not worked out in either the resolution session or formal mediation then the case would proceed to a hearing. The hearing is similar to a court presiding and will include opening statements, presentation of evidence and cross examination.
Hearing Officer Decisions are final unless appealed to either State or Federal courts. You can’t file in State or Federal Court until after going through due process. Hearing decisions shall be made on substantive grounds unless procedural violations impeded the child’s right to a free appropriate public education, significantly impeded the parents opportunity to participate in the decision making process or caused a deprivation of educational benefits.
What are Substantive Issues?
Substantive issues result in the denial of a free appropriate public education when the School District:
- Does not address the child’s unique needs;
- When the IEP does not provide some education benefits;
- When the IEP is not followed; and
- When the placement is not in the least restrictive environment.
Some Due Process remedies might include:
- Reimbursement – Such as, private therapies, private schools or Non-Public Schools paid out of pocket by the parents.
- Compensatory Education – Receiving services from the school district that should have been provided over the past 2 years such as additional therapy hours.
- Additional Services or Therapies both in school and out of school paid for by the District.
- Different Placement including potentially a Non-Public School placement.
- No punitive damages – parents can only get back money they spent.
- Parents can get reimbursement of legal fees if they win the case. Expert witness fees are not reimbursable at this time.
Due process complaints have a two year Statute of Limitations meaning the parents or school has up to 2 years to file. It is also important to note that if your child already has an IEP and you disagree with any part of it, the School District must maintain the current educational placement pending any proceedings. This clause most commonly referred to as a “Stay Put” means there can be no reduction of services while the disagreement is being worked out.