Tuesday, March 6, 2012

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.

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