Independent Educational Evaluations and the IDEA

             The Individuals with Disabilities Education Act (IDEA) provides that parents may obtain an Independent Educational Evaluation (IEE) if they disagree with the evaluation that has been performed by the school district and area education agency. IDEA §1415(b)(1).  The rules that implement this provision are set out in the IDEA’s implementing regulations at 34 C.F.R. § 300.502. 

             An IEE is "an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question."  It isn’t limited only to evaluating a child's academic or intellectual skills, but may include an evaluation of any skill related to the child's educational needs. On this basis, parents may request an IEE, for virtually any purpose if it impacts the child's education.

             Both school districts and parents are often confused about under what circumstances the school district is financially responsible to pay for an IEE.  Before discussing this, a couple of points need to be made:

1.            Neither the IDEA nor its regulations limit a parent’s right to obtain an independent educational evaluation of their child --unless a parent wants the school district to pay for it.

2.            Whether or not an IEE is paid for privately or by the school district, the report from the IEE must be “considered” in any decision made with respect to the provision of a free and appropriate education (FAPE) to the child. 34 C.F.R. 300.502(c).  

With respect to point 2, a school district is not required to accept the findings or recommendations of an IEE report.  Instead, the IEP team must review and discuss it.  This doesn’t mean that a school district may casually disregard an IEE report; in fact, several sections of the federal regulations direct school districts to ensure that such information provided by parents is properly considered. See 34 C.F.R. §§300.343(c)(2)(iii), 300.502(c), 300.533(a)(1)(i). 

             If a parent disagrees with an evaluation of his/her child, and wants the school district to pay for an IEE,  the parent should inform the school district in writing that s/he disagrees with the evaluation that has been performed by the school district/AEA, and that s/he is seeking the IEE at public expense.  In response, one of two things should happen:

1.            The school district/AEA will agree to the request, and provide the parent with information about where an IEE at public expense may be obtained and provide the agency criteria required of the evaluation, or

2.            The school district/AEA will could file a request for a due process hearing to show that their evaluation is appropriate. At the hearing, the parent may present information supporting his/her belief that the evaluation is insufficient and reasons why an IEE should be performed and paid for by the school district.  The administrative law judge conducting the hearing will decide whether or not to order the school district to pay for an IEE. 

                            34 C.F.R. § 300.502. Independent Educational Evaluations

(a) General.

                (1) The parents of a child with a disability have the right under this part to obtain an independent educational evaluation of the child, subject to paragraphs (b) through (e) of this section.

                (2) Each public agency must provide to parents, upon request for an independent educational evaluation, information about where an independent educational evaluation may be obtained, and the agency criteria applicable for independent educational evaluations as set forth in paragraph (e) of this section.

                (3) For the purposes of this subpart--

                                (i) Independent educational evaluation means an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question; and

                                (ii) Public expense means that the public agency either pays for the full cost of the evaluation or ensures that the evaluation is otherwise provided at no cost to the parent, consistent with § 300.103.

(b) Parent right to evaluation at public expense.

                (1) A parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency, subject to the conditions in paragraphs (b)(2) through (4) of this section.

                (2) If a parent requests an independent educational evaluation at public expense, the public agency must, without unnecessary delay, either--

                                (i) File a due process complaint to request a hearing to show that its evaluation is appropriate; or

                                (ii) Ensure that an independent educational evaluation is provided at public expense, unless the agency demonstrates in a hearing pursuant to §§ 300.507 through 300.513 that the evaluation obtained by the parent did not meet agency criteria.

                (3) If the public agency files a due process complaint notice to request a hearing and the final decision is that the agency's evaluation is appropriate, the parent still has the right to an independent educational evaluation, but not at public expense.

                (4) If a parent requests an independent educational evaluation, the public agency may ask for the parent's reason why he or she objects to the public evaluation. However, the public agency may not require the parent to provide an explanation and may not unreasonably delay either providing the independent educational evaluation at public expense or filing a due process complaint to request a due process hearing to defend the public evaluation.

                (5) A parent is entitled to only one independent educational evaluation at public expense each time the public agency conducts an evaluation with which the parent disagrees.

(c) Parent-initiated evaluations. If the parent obtains an independent educational evaluation at public expense or shares with the public agency an evaluation obtained at private expense, the results of the evaluation--

                (1) Must be considered by the public agency, if it meets agency criteria, in any decision made with respect to the provision of FAPE to the child; and

                (2) May be presented by any party as evidence at a hearing on a due process complaint under subpart E of this part regarding that child.

(d) Requests for evaluations by hearing officers. If a hearing officer requests an independent educational evaluation as part of a hearing on a due process complaint, the cost of the evaluation must be at public expense.

(e) Agency criteria.

                (1) If an independent educational evaluation is at public expense, the criteria under which the evaluation is obtained, including the location of the evaluation and the qualifications of the examiner, must be the same as the criteria that the public agency uses when it initiates an evaluation, to the extent those criteria are consistent with the parent's right to an independent educational evaluation.
                (2) Except for the criteria described in paragraph (e)(1) of this section, a public agency may not impose conditions or timelines related to obtaining an independent educational evaluation at public expense.

Doctor Letters and Special Education Needs

Today, I'm writing to strongly urge parents of school children with medically-based disabilities to ask their child's doctor to write a summary letter for the child's school district that verifies and thoroughly describes the child's medical condition, and informs the school about the child's health-related needs at school and extra curricular activities.  I recommend that parents copy the letter and give the copy to their child's school district.  I further recommend that parents ask the doctor to write updated letters each time there is any significant change in the child's health, or at the least, at the beginning of middle school and the beginning of high school.

Although I've never had a case in which the parents of a child with a medical disability had not given copies of his or her medical records to the school district, I've noticed that some of those records are written in a manner that could be misinterpreted by school personnel who have no medical background.  This is why I strongly urge parents to make sure that letters written for the purpose of verifying their child's disability and communicating his or her health needs to the school are thorough and written in clear and unambiguous language.

In the absence of a letter of this type, school districts address the educational needs of a student with medical disorder without regard to the medical basis of the disability.  While in some circumstances, the school may provide sufficient services, in other cases it may not, and in still others cases, a school's lack of knowledge about a student's medical risks can be exceptionally dangerous.

An painful example of this is the California wrongful death case in which the court's decision turned on its interpretation of a doctor's letter contained in the school district's records. 

The letter, which had been written several years before the student's death while running laps in gym class, described the boy's heart problem as mild and said he could "undertake a full school program, including moderate involvement in sports and running games," then added that "he should not be committed to any sustained, grueling, competitive training or conditioning program, such as might be undertaken with varsity football or basketball."  The school nurse testified that she interpreted this to mean that the boy needed no special handling, did not need adaptive PE, and that no health warning note needed to be sent to the gym instructor.  The instructor testified that because he didn't know about the boy's weak heart, he thought the boy was having a seizure, and didn't start cardiopulmonary resuscitation.

Seclusion, Restraints & Students with Disabilities

A new report (see figure below) from the U.S. Department of Education's Office of Civil Rights has made public that 70% of the public school students subjected to physical restraint and seclusion are students with disabilities.

Iowa's Senator Tom Harkin is sponsoring a bill called the Keeping All Students Safe Act.  It would ban seclusion and confinement of children in locked rooms or spaces from which they cannot exit, and restrict physical restraint to emergencies posing a threat of serious bodily injury to self or other. Schools will no longer be able seclusion and restraint as ways punish children, coerce compliance, for behavioral infractions, or as a substitute for positive behavioral support or proper educational programming. These means would not be options when less restrictive measures would be effective. They would not be permitted to be used for hours. The bill would ban restraints that are life threatening (including those that interfere with breathing), mechanical and chemical restraints, and aversives that threaten health or safety, and restraints that interfere with the ability to communicate or which would harm a child.  The full text of the Keeping All Students Safe Act is available http://www.copaa.org/wp-content/uploads/2011/12/RSLegLang12-16-111.pdf

Iowa is among the states that has laws that generally limit public and private school employees in regard to applying physical contact or force to enrolled students, and require that any such force or contact is reasonable and necessary under the circumstances. These rules also provide requirements for administrators and staff of public schools, accredited nonpublic schools, and area education agencies regarding the use of physical restraints and physical confinement and detention.

These laws bar the use of mechanical restraints, and include misusing physical devices that are meant for safety, therapy, or another purpose for disciplinary purposes. Material restraints cannot be used to confine a student. While "necessary and reasonable" force may be used, these terms are defined by the context of the event, and the Iowa Department of Education notes that, for example, restraining a student for tearing up a paper is unreasonable and unnecessary force.

If school personnel decide to seclude or physically confine a student, the room must be of adequate size, sufficient light, adequate ventilation, and temperature similar to the rest of the building. The door to the room must be nonlocking and allow for easy exit; it may not be disabled by duct tape or chairs.

The period of time for confinement is to be "reasonable" and "allow for bodily needs."  Adequate and continuous adult supervision is necessary, and if the confinement is longer than one class period or 60 minutes, an administrator must authorize the continued confinement.

If school personnel use restraint or seclusion with a student, the parents must be notified that same day and in writing within 3 days.  They must be shown the documentation of the incident, provided with the name of all school employees involved, and the administrator authorizing further confinement.

To view the full text of the Office of Civil Rights report, visit http://www2.ed.gov/about/offices/list/ocr/docs/crdc-2012-data-summary.pdf

Special Education & Disciplinary Procedures

A day in which I receive four phone calls in regard to questions about school discipline procedures under the IDEA seems like a good day to post the federal regulations for Part B of IDEA, §§300.530 through 300.536.

§ 300.530 Authority of school personnel.
(a) Case-by-case determination. School personnel may consider any unique circumstances on a case-by-case basis when determining whether a change in placement, consistent with the other requirements of this section, is appropriate for a child with a disability who violates a code of student conduct.
(b) General.
(1) School personnel under this section may remove a child with a disability who violates a code of student conduct from his or her current placement to an appropriate interim alternative educational setting, another setting, or suspension, for not more than 10 consecutive school days (to the extent those alternatives are applied to children without disabilities), and for additional removals of not more than 10 consecutive school days in that same school year for separate incidents of misconduct (as long as those removals do not constitute a change of placement under § 300.536).
(2) After a child with a disability has been removed from his or her current placement for 10 school days in the same school year, during any subsequent days of removal the public agency must provide services to the extent required under paragraph (d) of this section.
(c) Additional authority. For disciplinary changes in placement that would exceed 10 consecutive school days, if the behavior that gave rise to the violation of the school code is determined not to be a manifestation of the child’s disability pursuant to paragraph (e) of this section, school personnel may apply the relevant disciplinary procedures to children with disabilities in the same manner and for the same duration as the procedures would be applied to children without disabilities, except as provided in paragraph (d) of this section.
(d) Services.
(1) A child with a disability who is removed from the child’s current placement pursuant to paragraphs (c), or (g) of this section must—
(i) Continue to receive educational services, as provided in § 300.101(a), so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child’s IEP; and
(ii) Receive, as appropriate, a functional behavioral assessment, and behavioral intervention services and modifications, that are designed to address the behavior violation so that it does not recur.
(2) The services required by paragraph (d)(1), (d)(3), (d)(4), and (d)(5) of this section may be provided in an interim alternative educational setting.
(3) A public agency is only required to provide services during periods of removal to a child with a disability who has been removed from his or her current placement for 10 school days or less in that school year, if it provides services to a child without disabilities who is similarly removed.
(4) After a child with a disability has been removed from his or her current placement for 10 school days in the same school year, if the current removal is for not more than 10 consecutive school days and is not a change of placement under § 300.536, school personnel, in consultation with at least one of the child’s teachers, determine the extent to which services are needed, as provided in § 300.101(a), so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child’s IEP.
(5) If the removal is a change of placement under § 300.536, the child’s IEP Team determines appropriate services under paragraph (d)(1) of this section.
(e) Manifestation determination.
(1) Within 10 school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct, the LEA, the parent, and relevant members of the child’s IEP Team (as determined by the parent and the LEA) must review all relevant information in the student’s file, including the child’s IEP, any teacher observations, and any relevant information provided by the parents to determine—
(i) If the conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability; or
(ii) If the conduct in question was the direct result of the LEA’s failure to implement the IEP.
(2) The conduct must be determined to be a manifestation of the child’s disability if the LEA, the parent, and relevant members of the child’s IEP Team determine that a condition in either paragraph (e)(1)(i) or (1)(ii) of this section was met.
(3) If the LEA, the parent, and relevant members of the child’s IEP Team determine the condition described in paragraph (e)(1)(ii) of this section was met, the LEA must take immediate steps to remedy those deficiencies.
(f) Determination that behavior was a manifestation. If the LEA, the parent, and relevant members of the IEP Team make the determination that the conduct was a manifestation of the child’s disability, the IEP Team must—
(1) Either—
(i) Conduct a functional behavioral assessment, unless the LEA had conducted a functional behavioral assessment before the behavior that resulted in the change of placement occurred, and implement a behavioral intervention plan for the child; or
(ii) If a behavioral intervention plan already has been developed, review the behavioral intervention plan, and modify it, as necessary, to address the behavior; and
(2) Except as provided in paragraph (g) of this section, return the child to the placement from which the child was removed, unless the parent and the LEA agree to a change of placement as part of the modification of the behavioral intervention plan.
(g) Special circumstances. School personnel may remove a student to an interim alternative educational setting for not more than 45 school days without regard to whether the behavior is determined to be a manifestation of the child’s disability, if the child—
(1) Carries a weapon to or possesses a weapon at school, on school premises, or to or at a school function under the jurisdiction of an SEA or an LEA;
(2) Knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance, while at school, on school premises, or at a school function under the jurisdiction of an SEA or an LEA; or
(3) Has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction of an SEA or an LEA.
(h) Notification. On the date on which the decision is made to make a removal that constitutes a change of placement of a child with a disability because of a violation of a code of student conduct, the LEA must notify the parents of that decision, and provide the parents the procedural safeguards notice described in § 300.504.
(i) Definitions. For purposes of this section, the following definitions apply:
(1) Controlled substance means a drug or other substance identified under schedules I, II, III, IV, or V in section 202(c) of the Controlled Substances Act (21 U.S.C. 812(c)).
(2) Illegal drug means a controlled substance; but does not include a controlled substance that is legally possessed or used under the supervision of a licensed health-care professional or that is legally possessed or used under any other authority under that Act or under any other provision of Federal law.
(3) Serious bodily injury has the meaning given the term ‘‘serious bodily injury’’ under paragraph (3) of subsection (h) of section 1365 of title 18, United States Code.
[Note: The US Department of Education uses the following from 18 U.S.C. 1365(h)(3): The term serious bodily injury means bodily injury that involves—
1. A substantial risk of death;
2. Extreme physical pain;
3. Protracted and obvious disfigurement; or
4. Protracted loss or impairment of the function of a bodily member, organ, or mental faculty. (71 Fed. Reg. 46723)]
(4) Weapon has the meaning given the term ‘‘dangerous weapon’’ under paragraph (2) of the first subsection (g) of section 930 of title 18, United States Code.
[Note: The US Department of Education uses the following excerpt from the definition of “dangerous weapon” in 18 U.S.C.04-Z(g)(2): The term dangerous weapon means a weapon, device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than 2 ½ inches in length. (71 Fed. Reg. 46723)]
(Authority: 20 U.S.C. 1415(k)(1) and (7))

§ 300.531 Determination of setting.
The child’s IEP Team determines the interim alternative educational setting for services under § 300.530(c), (d)(5), and (g).
(Authority: 20 U.S.C. 1415(k)(2))

§ 300.532 Appeal.
(a) General. The parent of a child with a disability who disagrees with any decision regarding placement under §§ 300.530 and 300.531, or the manifestation determination under § 300.530(e), or an LEA that believes that maintaining the current placement of the child is substantially likely to result in injury to the child or others, may appeal the decision by requesting a hearing. The hearing is requested by filing a complaint pursuant to §§ 300.507 and 300.508(a) and (b).
(b) Authority of hearing officer.
(1) A hearing officer under § 300.511 hears, and makes a determination regarding an appeal under paragraph (a) of this section.
(2) In making the determination under paragraph (b)(1) of this section, the hearing officer may—
(i) Return the child with a disability to the placement from which the child was removed if the hearing officer determines that the removal was a violation of § 300.530 or that the child’s behavior was a manifestation of the child’s disability; or
(ii) Order a change of placement of the child with a disability to an appropriate interim alternative educational setting for not more than 45 school days if the hearing officer determines that maintaining the current placement of the child is substantially likely to result in injury to the child or to others.
(3) The procedures under paragraphs (a) and (b)(1) and (2) of this section may be repeated, if the LEA believes that returning the child to the original placement is substantially likely to result in injury to the child or to others.
(c) Expedited due process hearing.
(1) Whenever a hearing is requested under paragraph (a) of this section, the parents or the LEA involved in the dispute must have an opportunity for an impartial due process hearing consistent with the requirements of §§ 300.507 and 300.508(a) through (c) and §§ 300.510 through 300.514, except as provided in paragraph (c)(2) through (4) of this section.
(2) The SEA or LEA is responsible for arranging the expedited due process hearing, which must occur within 20 school days of the date the complaint requesting the hearing is filed. The hearing officer must make a determination within 10 school days after the hearing.
(3) Unless the parents and LEA agree in writing to waive the resolution meeting described in paragraph (c)(3)(i) of this section, or agree to use the mediation process described in § 300.506—
(i) A resolution meeting must occur within seven days of receiving notice of the due process complaint; and
(ii) The due process hearing may proceed unless the matter has been resolved to the satisfaction of both parties within 15 days of the receipt of the due process complaint.
(4) A State may establish different State-imposed procedural rules for expedited due process hearings conducted under this section than it has established for other due process hearings, but, except for the timelines as modified in paragraph (c)(3) of this section, the State must ensure that the requirements in §§ 300.510 through 300.514 are met.
(5) The decisions on expedited due process hearings are appealable consistent with § 300.514.
(Authority: 20 U.S.C. 1415(k)(3) and (4)(B), 1415(f)(1)(A))

§ 300.533 Placement during appeals.
When an appeal under § 300.532 has been made by either the parent or the LEA, the child must remain in the interim alternative educational setting pending the decision of the hearing officer or until the expiration of the time period specified in §A300.530(c) or (g), whichever occurs first, unless the parent and the SEA or LEA agree otherwise.
(Authority: 20 U.S.C. 1415(k)(4)(A))

§ 300.534 Protections for children not determined eligible for special education and related services.
(a) General. A child who has not been determined to be eligible for special education and related services under this part and who has engaged in behavior that violated a code of student conduct, may assert any of the protections provided for in this part if the public agency had knowledge (as determined in accordance with paragraph (b) of this section) that the child was a child with a disability before the behavior that precipitated the disciplinary action occurred.
(b) Basis of knowledge. A public agency must be deemed to have knowledge that a child is a child with a disability if before the behavior that precipitated the disciplinary action occurred—
(1) The parent of the child expressed concern in writing to supervisory or administrative personnel of the appropriate educational agency, or a teacher of the child, that the child is in need of special education and related services;
(2) The parent of the child requested an evaluation of the child pursuant to §§ 300.300 through 300.311; or
(3) The teacher of the child, or other personnel of the LEA, expressed specific concerns about a pattern of behavior demonstrated by the child directly to the director of special education of the agency or to other supervisory personnel of the agency.
(c) Exception. A public agency would not be deemed to have knowledge under paragraph (b) of this section if—
(1) The parent of the child—
(i) Has not allowed an evaluation of the child pursuant to §§ 300.300 through 300.311; or
(ii) Has refused services under this part; or
(2) The child has been evaluated in accordance with §§ 300.300 through 300.311 and determined to not be a child with a disability under this part.
(d) Conditions that apply if no basis of knowledge.
(1) If a public agency does not have knowledge that a child is a child with a disability (in accordance with paragraphs (b) and (c) of this section) prior to taking disciplinary measures against the child, the child may be subjected to the disciplinary measures applied to children without disabilities who engage in comparable behaviors consistent with paragraph (d)(2) of this section.
(2)
(i) If a request is made for an evaluation of a child during the time period in which the child is subjected to disciplinary measures under § 300.530, the evaluation must be conducted in an expedited manner.
(ii) Until the evaluation is completed, the child remains in the educational placement determined by school authorities, which can include suspension or expulsion without educational services.
(iii) If the child is determined to be a child with a disability, taking into consideration information from the evaluation conducted by the agency and information provided by the parents, the agency must provide special education and related services in accordance with this part, including the requirements of §§ 300.530 through 300.536 and section 612(a)(1)(A) of the Act.
(Authority: 20 U.S.C. 1415(k)(5))

§ 300.535 Referral to and action by law enforcement and judicial authorities.
(a) Rule of construction. Nothing in this part prohibits an agency from reporting a crime committed by a child with a disability to appropriate authorities or prevents State law enforcement and judicial authorities from exercising their responsibilities with regard to the application of Federal and State law to crimes committed by a child with a disability.
(b) Transmittal of records.
(1) An agency reporting a crime committed by a child with a disability must ensure that copies of the special education and disciplinary records of the child are transmitted for consideration by the appropriate authorities to whom the agency reports the crime.
(2) An agency reporting a crime under this section may transmit copies of the child’s special education and disciplinary records only to the extent that the transmission is permitted by the Family Educational Rights and Privacy Act.
(Authority: 20 U.S.C. 1415(k)(6)

§ 300.536 Change of placement because of disciplinary removals.
(a) For purposes of removals of a child with a disability from the child’s current educational placement under §§ 300.530 through 300.535, a change of placement occurs if—
(1) The removal is for more than 10 consecutive school days; or
(2) The child has been subjected to a series of removals that constitute a pattern—
(i) Because the series of removals total more than 10 school days in a school year;
(ii) Because the child’s behavior is substantially similar to the child’s behavior in previous incidents that resulted in the series of removals; and
(iii) Because of such additional factors as the length of each removal, the total amount of time the child has been removed, and the proximity of the removals to one another.
(b) (1) The public agency determines on a case-by-case basis whether a pattern of removals constitutes a change of placement.
(2) This determination is subject to review through due process and judicial proceedings. (Authority: 20 U.S.C. 1415(k))

Recommendations and Suggestions for Improving Special Education Meetings and Mediations

Attorneys who represent parents in special education matters have been reporting some disturbing trends. On the basis of these reports and personal experiences, this week I recommended that the Iowa Department of Education (IDOE) consider the adoption of certain rules and procedures to protect parents’ rights.

Until these recommendations are adopted, which may not occur, I recommend that parents take it upon themselves to require the following of their school districts.

Documents protected by HIPPA.
My first recommendation is that the IDOE adopt a rule be applied when a parent provides copy of a document protected by HIPPA, to a school district or area education agency (AEA). On those occasions, the school district or AEA representative receiving the document should be required to give the parent a signed and dated receipt that briefly describes the document received, the number of its pages, the date on the document (if any), and states that it was received by the undersigned person who will ensure that the child’s IEP team members will be made aware of the document, and that it will be filed in the child’s school record. In the absence of such a receipt, parents have no way of “proving” that they have provided the school district with such a document, and are vulnerable to claims by a school district or AEA to the effect that, "Because the parent can't prove that he or she provided a copy of the agreement to the school district, we (the school district/AEA can’t be held responsible for knowing what was in it."

Verification of the Persons in Attendance at IEP Meetings
Similarly, I recommended that the IDOE adopt a rule requiring that at the end of each IEP meeting, the meeting facilitator draw up a list of all the people who attended the meeting, and provide a signed and dated copy of that list to the parents. In the absence of procedures that provide the parent with documentation of the names of the individuals who actually attended the meeting, parents are vulnerable when school district attorneys point out: “You can’t prove that [so-and-so] was not in attendance, so we can assume it was a valid IEP meeting.”

When Mediation is in Session, Attorneys Shall Not Use Their Cell Phones
In regard to improving the process of mediation, I have recommended that the IDOE direct its mediators to issue an instruction at the beginning of each mediation session, stating that “if either of the attorneys in attendance needs to check his/her cell phone, please advise me and we will take a short break." This courteous request should be sufficient to discourage the unprofessional tendency of some attorneys to demonstrate their disrespect by playing with their cell phones for extended periods during mediation.

School Districts and AEAs are to Give Advance Notice if One or Both Will Not Honor a Parent's Request for Legal Fee Reimbursement As Part of a Settlement
Finally, I recommended to the IDOE that it give an instruction to school districts and AEAs in regard to mediation requests from parents which state that the parents request that their reasonable attorney fees be reimbursed if a settlement is reached at the mediation. The specific instruction that I have requested is that if the school district and/or AEA are unwilling to address this request in the terms of a settlement agreement, then the attorney for the school district and/or AEA should notify the parents’ attorney of this before the mediation date is scheduled. In my experience, the refusal of a school district and/or AEA to address the parents' attorney fees as a term of the settlement is the surest sign that the school and/or AEA is unwilling to mediate in good faith, and that it may be using mediation as a means to run up the parents’ legal fees in order to reduce the parent’s resources that but for the mediation would have been available to finance a due process hearing.