Since the earliest special education legislation, Congress has recognized that the often complex process of planning and implementing special education programs for students with disabilities might lead to disagreements between schools and families. To help address this inevitable conflict, the Act’s procedural safeguards contain several provisions to help schools and families resolve disagreements.
In each of the last two renewals of the Act, in 1997 and more recently in 2004, Congress has sought to provide expanded opportunities for early resolution of disputes. And, in an attempt to provide informal and less contentious ways to resolve disagreements, many states have developed additional strategies for early dispute resolution. Many of these strategies attempt to strengthen relationships between parents and school personnel. They offer a range of informal problem-solving and conflict resolution approaches, including stakeholder training and Individualized Education Program (IEP) facilitation.
Most frequent areas of disagreement
Within special education, conflicts arise between schools and families for a variety of reasons. Most often, the design and/or delivery of special education services form the basis for the disagreement. Design issues include:
- eligibility for services
- methodology of intervention
- perceptions about student needs
- the scope of the IDEA entitlement
- educational placement
Delivery issues include problems associated with implementing the student’s IEP that has been agreed upon by the family and the school district. Delivery issues include:
- competence of the special education services provider (for example, the special education teacher)
- scheduling (for example, times and days special education services are to be provided to the student)
- coordination of services
- procedural requirements
- privacy and/or confidentiality
Dispute resolution options under IDEA 2004
|Less formal ————————————————— More formal|
As the chart above indicates, IDEA’s most formal dispute resolution option is an impartial due process hearing. A formal due process hearing is initiated by a written due process complaint notice and follows a rigid set of provisions contained in IDEA.
Due process hearings are formal, quasi-judicial forums in which parties to a dispute (generally, school personnel and the family) present arguments and evidence to an impartial hearing officer. Parties who do not prevail in due process hearings may seek redress in the federal district and appellate courts, including the United States Supreme Court.
Increases in the number of due process hearings – for example, from 4,079 in 1991 to 9,827 in 1998-formed the rationale for the provision of additional, less formal avenues for dispute resolution included in IDEA 2004. Congress also placed important new limitations on the provisions regarding due process hearings.
The most informal option on the dispute resolution continuum is impartial mediation. Mediation is a confidential process that allows parties to resolve disputes without a formal due process hearing. The mediator helps the parties express their views and positions and understand each other’s views and positions. The mediator’s role is to facilitate the process, not to take positions or sides.
In its 1997 update of IDEA, Congress added a requirement for all states to offer mediation as an option to resolve disputes prior to a due process hearing but following the request for a due process complaint notice. IDEA 2004 now requires that mediation be made available whether or not there is a request for a due process hearing.
IDEA 2004 also makes several other important changes to mediation. These include:
- Mediation must be conducted by a qualified and impartial mediator.
- Mediation discussions are to be kept confidential and may not be used as evidence in any subsequent due process hearing.
- When a resolution is reached to resolve a dispute, the parties execute a legally binding agreement that is enforceable in a district court.
Due process complaint notice
IDEA 2004 added important provisions to the due process complaint notice. These include:
Statute of limitations
Now requests for an impartial due process hearing must be made within two years of the date the parent or school district knew (or should have known) about the alleged action that forms the basis of the due process hearing request. If a state has an established time limitation for requesting a hearing, that time limitation applies.
Contents of complaint
Due process complaint notices must now include information about the nature of the problem, relevant facts, and proposed resolution. In addition, within a specific timeframe, the due process complaint notice must be deemed sufficient by the party who receives the notice. If they deem the notice sufficient, the receiving party must respond and address each of the issues in the complaint. These new disclosure requirements are designed to give both parties full notice of the matters in dispute, in advance of the time that any dispute resolution options begin.
Another important provision in IDEA 2004 is the requirement for a “resolution session” prior to a due process hearing. This preliminary meeting involves the parents, the relevant members of the IEP team, and a representative of the school district who has decision-making authority. However, unlike mediation, the resolution session does not include an impartial third party who can assist the two sides in resolving their disagreement.
There are several key requirements regarding the resolution session. They include:
- Resolution session must be convened within 15 calendar days of the receipt of a due process complaint.
- The school district may not include its attorney in the session unless the parent is accompanied by an attorney. However, the parent’s attorney may attend the session, whether or not the school district’s attorney is included.
- The session may be waived by the parents and the school district if both parties sign a written agreement to do so, or if they agree to use the mediation process as a means to resolve the dispute.
- If an agreement is reached at the resolution session, the parties must execute a legally binding agreement signed by both parties.
- A party may void the agreement within three business days.
- If the school district has not resolved the problem within 30 days of receipt of the complaint, the due process hearing proceeds along all applicable time lines.
Due Process Hearing
The formal due process hearing, available to either parents or schools to resolve disputes, has also undergone some important changes in IDEA 2004. These include:
Issues that can be raised at the due process hearing are now limited to those raised in the due process complaint notice.
A hearing officer conducting a hearing must not be an employee of the state education agency or the local school district involved in the dispute, and must possess knowledge of the IDEA law and regulations, as well as federal and state case law.
Decisions of the Hearing Officer
A new provision requires that a decision by a hearing officer must be made on substantive grounds, and dramatically limits circumstances in which such a decision can be reached on procedural issues. For example, if the hearing officer makes a decision based on whether the proposed special education program was adequate to provide benefit to the student, that constitutes substantive grounds. An example of a procedural issue would be whether the school district failed to provide notice of an IEP meeting early enough to ensure that parents had an opportunity to attend, even though the parents were able to attend. A procedural violation can only be the basis of a hearing officer’s ruling if such a violation impeded the child’s right to “free and appropriate public education” (FAPE), caused a deprivation of services, or impeded parents’ opportunity to participate.
While IDEA 2004 maintains the provision that allows a court to award reasonable attorneys’ fees to the parents when they are the winning party in due process, a new provision now also allows for attorneys’ fees against the attorney of a parent when the school district is the winning party. However, such awards must find that the parents’ complaint was frivolous, unreasonable, or without foundation.
If the losing party decides to appeal to state or federal court, they must do so within 90 days from the date of the hearing officer’s decision, unless a state has a shorter time line.
As with all other aspects of IDEA, your state will have its own law or regulations that may contain additional procedures for dispute resolution. Be sure that you fully understand both federal and state laws and regulations on this topic before initiating a due process complaint. Each state is required to have a model form to assist parents in filing a due process complaint in accordance with IDEA and state requirements. To obtain your state’s model form, go to the appropriate website listed under “Other Resources” for your state department of education or a Parent Training and Information Center.
- Feinberg, E., Beyer, J., et.al. “Beyond Mediation: Strategies For Appropriate Early Dispute Resolution In Special Education.” The Consortium for Appropriate Dispute Resolution in Special Education (CADRE).