This morning I would like to thank California special education attorney-blogger, Greg Branch, for bringing light to a number of the reasons why the recent proposals of the School Superintendents' Association (AASA) are flawed and should not be followed.
I encourage readers to read Mr. Branch's blog article and Examiner article Examiner article in which he thoughtfully explains why the Individuals with Disabilities Act (IDEA) is a critical source of civil rights for children with disabilities.
Showing posts with label Mediation. Show all posts
Showing posts with label Mediation. Show all posts
Monday, April 29, 2013
Tuesday, April 16, 2013
Mediation and Special Education Dispute Resolution
"I’m calling to ask you about whether there is anything I can do about . . ."
Most of the parents who call about special education matters tell me that they’ve talked with their child’s school district and IEP team, and remain in disagreement in regard to one or more of the following:
1. The school district says my child isn’t eligible for special education.
2. The IEP team doesn’t think my child needs more or different special education and related services.
3. The school isn’t providing the assistance or services contained in my child’s current IEP. . . .
4. The IEP team wants to move my child to a different classroom.
5. The IEP team changed my child’s IEP in a manner that I don’t think is appropriate. . . .
6. The school won’t allow my child to participate in . . .
The good news is that many times there is something the parent can do, and it can often be done through the process of mediation.
When Congress enacted the Individuals with Disabilities Education Act (IDEA) it recognized that sometimes parents and school districts would disagree about the special education instruction, services and placements needed by each unique child in order to receive a free and appropriate public education (FAPE). As a result, the IDEA requires that each state department of education (DOE) have dispute resolution procedures, including special education mediation. (20 U.S.C. 1415(e); 34 CFR 300.506).
A special education mediation is a voluntary and confidential meeting that is facilitated at the DOE’s expense by a trained, impartial mediator. Discussions that occur during the special education mediation conference must be confidential and may not be used as evidence in any subsequent due process hearings or civil proceedings. However, the parties may conclude the mediation by placing written statements of their agreements into a formal mediation agreement that becomes legally enforceable after both parties have signed the document.
When a parent (or the parent’s attorney) files a request for mediation with the state DOE, the DOE and a mediator schedule a time, place and date for the mediation. Mediators, unlike administrative law judges or hearing officers in due process hearings, are not decision-makers. They don’t judge, give opinions, or take sides. Instead, they set out the structure and rules of the mediation, and help to keep it on track. One of Iowa’s experienced mediators always admonishes the parties to "be hard on the problems, and not on each other."
In 2010, CADRE, the National Center on Appropriate Dispute Resolution in Special Education, published the results of a six-year study that was performed in order to identify effective state special education dispute resolution systems and the components of those systems that contributed to their effectiveness. The states of Iowa, Oklahoma, Pennsylvania and Wisconsin were identified as having the most effective systems, and CADRE developed profiles of their procedures for use as models for other states. During the six-year period of CADRE’s study, Iowa, a state which incorporated mediation procedures into its state special education regulations in 1995, consistently had the lowest combined rates of written state complaint and due process complaint filings among all states.
As an attorney who represents parents in a number of special education mediations each year, it has been my experience that a substantial majority of parent-school district disputes can be resolved by mediation in manner that is satisfactory to all the parties (parent, school district and area education agency). I believe that Iowa's procedures and the preparation of its mediators are very important to the success of its system in resolving disputes that would otherwise have gone to due process. However, experience has also demonstrated that no matter how effective the state's procedures or the quality of its mediators, mediation as a dispute resolution tool breaks down quickly when a school district is represented by legal counsel with a limited grasp of special education and special education law, who does not approach the mediation table as a problem-solver, but rather as defense counsel. Under those conditions, even "no-brainer" disputes can end up in due process litigation. Perhaps a future CADRE study will find that school districts represented by such attorneys have higher rates of due process hearings.
Most of the parents who call about special education matters tell me that they’ve talked with their child’s school district and IEP team, and remain in disagreement in regard to one or more of the following:
1. The school district says my child isn’t eligible for special education.
2. The IEP team doesn’t think my child needs more or different special education and related services.
3. The school isn’t providing the assistance or services contained in my child’s current IEP. . . .
4. The IEP team wants to move my child to a different classroom.
5. The IEP team changed my child’s IEP in a manner that I don’t think is appropriate. . . .
6. The school won’t allow my child to participate in . . .
The good news is that many times there is something the parent can do, and it can often be done through the process of mediation.
When Congress enacted the Individuals with Disabilities Education Act (IDEA) it recognized that sometimes parents and school districts would disagree about the special education instruction, services and placements needed by each unique child in order to receive a free and appropriate public education (FAPE). As a result, the IDEA requires that each state department of education (DOE) have dispute resolution procedures, including special education mediation. (20 U.S.C. 1415(e); 34 CFR 300.506).
A special education mediation is a voluntary and confidential meeting that is facilitated at the DOE’s expense by a trained, impartial mediator. Discussions that occur during the special education mediation conference must be confidential and may not be used as evidence in any subsequent due process hearings or civil proceedings. However, the parties may conclude the mediation by placing written statements of their agreements into a formal mediation agreement that becomes legally enforceable after both parties have signed the document.
When a parent (or the parent’s attorney) files a request for mediation with the state DOE, the DOE and a mediator schedule a time, place and date for the mediation. Mediators, unlike administrative law judges or hearing officers in due process hearings, are not decision-makers. They don’t judge, give opinions, or take sides. Instead, they set out the structure and rules of the mediation, and help to keep it on track. One of Iowa’s experienced mediators always admonishes the parties to "be hard on the problems, and not on each other."
In 2010, CADRE, the National Center on Appropriate Dispute Resolution in Special Education, published the results of a six-year study that was performed in order to identify effective state special education dispute resolution systems and the components of those systems that contributed to their effectiveness. The states of Iowa, Oklahoma, Pennsylvania and Wisconsin were identified as having the most effective systems, and CADRE developed profiles of their procedures for use as models for other states. During the six-year period of CADRE’s study, Iowa, a state which incorporated mediation procedures into its state special education regulations in 1995, consistently had the lowest combined rates of written state complaint and due process complaint filings among all states.
As an attorney who represents parents in a number of special education mediations each year, it has been my experience that a substantial majority of parent-school district disputes can be resolved by mediation in manner that is satisfactory to all the parties (parent, school district and area education agency). I believe that Iowa's procedures and the preparation of its mediators are very important to the success of its system in resolving disputes that would otherwise have gone to due process. However, experience has also demonstrated that no matter how effective the state's procedures or the quality of its mediators, mediation as a dispute resolution tool breaks down quickly when a school district is represented by legal counsel with a limited grasp of special education and special education law, who does not approach the mediation table as a problem-solver, but rather as defense counsel. Under those conditions, even "no-brainer" disputes can end up in due process litigation. Perhaps a future CADRE study will find that school districts represented by such attorneys have higher rates of due process hearings.
Tuesday, January 31, 2012
Parents May Be “Outvoted” at IEP Team Meetings, But Still Have Rights
The U.S. Department of Education’s Office of Special Education Programs (OSEP) responded to a parent’s letter inquiring about IEP Team decision making in its Letter to Richards, 55 IDELR 107 (OSEP 2010). In the letter, OSEP stated that it is not appropriate for an IEP to make decisions about a child’s IEP by majority vote. OSEP also noted that while the IEP team should try to reach general agreement, the school district has the final responsibility for determining the appropriate services.
When parents and school districts disagree about a child’s IEP, parents commonly have the feeling that they have been, in effect, outvoted by the school district and area education agency (AEA) personnel at the meeting. While the law assigns school districts the final responsibility for determining appropriate services, it also requires that the district provide “prior written notice” of the school district’s decision regarding the child’s educational program and the parents’ right to request a due process hearing.
“Prior Written Notice” is notice given in writing to parents in regard to an action proposed or refused by the school district with respect to a child’s special education program. School districts are required to provide it whenever the district or AEA refuses to implement a parent’s proposal, or proposes to change a child's identification, evaluation, or placement. The proposal or refusal must be in regard to a matter over which the IEP team decision making authority.
The written notice must be provided to the parent after the district or AEA has made the decision to refuse or propose, but within a reasonable time before the district or AEA implements the proposed action. Before the action is implemented, the parent, district, or AEA has the right to request mediation or an impartial due process hearing on any proposed or refused action.
Prior written notice MUST contain the following:
∙ A description of the action proposed or refused.
∙ An explanation of why the district or AEA proposes or refuses to take the action.
∙ A description of the options the district or AEA considered and the reasons why those options were rejected.
∙ A description of each evaluation procedure, test, record, or report the district or AEA used as a basis for the proposed or refused action.
∙ A description of any other factors that are relevant to the district or AEA’s proposal or refusal.
∙ If the proposed action a change in the child’s identification, evaluation, or placement, when that action will be implemented
∙ The name and contact information about the person to whom the parent may address questions regarding the notice
∙ A statement that parents have the right to challenge the decision by invoking their rights under the IDEA’s procedural safeguards.
School districts MUST provide parents with prior written notice when they refuse or propose to do any of the following:
∙ Conduct or deny an initial evaluation
∙ Change or refuse to change a child’s services or placement
∙ Add, refuse to add, or terminate a service, support, or related service
∙ Change or refuse to change the means through which the child’s services are delivered
∙ Provide, deny, delete, or change a child’s access to Extended School Year services
∙ Add, change, or delete an IEP goal
∙ Whenever discipline results in a change of placement
When parents and school districts disagree about a child’s IEP, parents commonly have the feeling that they have been, in effect, outvoted by the school district and area education agency (AEA) personnel at the meeting. While the law assigns school districts the final responsibility for determining appropriate services, it also requires that the district provide “prior written notice” of the school district’s decision regarding the child’s educational program and the parents’ right to request a due process hearing.
“Prior Written Notice” is notice given in writing to parents in regard to an action proposed or refused by the school district with respect to a child’s special education program. School districts are required to provide it whenever the district or AEA refuses to implement a parent’s proposal, or proposes to change a child's identification, evaluation, or placement. The proposal or refusal must be in regard to a matter over which the IEP team decision making authority.
The written notice must be provided to the parent after the district or AEA has made the decision to refuse or propose, but within a reasonable time before the district or AEA implements the proposed action. Before the action is implemented, the parent, district, or AEA has the right to request mediation or an impartial due process hearing on any proposed or refused action.
Prior written notice MUST contain the following:
∙ A description of the action proposed or refused.
∙ An explanation of why the district or AEA proposes or refuses to take the action.
∙ A description of the options the district or AEA considered and the reasons why those options were rejected.
∙ A description of each evaluation procedure, test, record, or report the district or AEA used as a basis for the proposed or refused action.
∙ A description of any other factors that are relevant to the district or AEA’s proposal or refusal.
∙ If the proposed action a change in the child’s identification, evaluation, or placement, when that action will be implemented
∙ The name and contact information about the person to whom the parent may address questions regarding the notice
∙ A statement that parents have the right to challenge the decision by invoking their rights under the IDEA’s procedural safeguards.
School districts MUST provide parents with prior written notice when they refuse or propose to do any of the following:
∙ Conduct or deny an initial evaluation
∙ Change or refuse to change a child’s services or placement
∙ Add, refuse to add, or terminate a service, support, or related service
∙ Change or refuse to change the means through which the child’s services are delivered
∙ Provide, deny, delete, or change a child’s access to Extended School Year services
∙ Add, change, or delete an IEP goal
∙ Whenever discipline results in a change of placement
Sunday, January 22, 2012
Special Education Mediation
The Individuals with Disabilities Education Act (IDEA) requires that state departments of education provide a process through which parents of children with disabilities have the opportunity to request a mediation conference to settle disagreements the assistance of trained neutral mediator, between the parent, school district, and area education agency. [20 U.S.C. 1415(e); 34 CFR 300.506] More specifically, the IDEA requires state departments to maintain a list of qualified mediators who are knowledgeable about special education law and trained in mediation techniques, compensate the mediators so that the process is free to both parents and school districts, and establish and implement procedures for facilitating mediation.
Unlike due process hearings, the law requires that mediation be voluntary on both sides. This means that if a school district opposes a parent’s request for mediation, a mediation will not be held. However, school districts and AEAs often prefer mediation to due process since there is little down-side to them other than their attorney fee expenses, which in some states, are covered by the school district’s and AEA’s insurer.
Other than the prospect of attorney fees, there is little down-side for parents. Before thinking about filing a request and going it alone at a mediation, parents who think they cannot afford an attorney’s services should first speak with an attorney who represents parents in special education matters, and inquire how the attorney charges in regard to mediation proceedings.
Mediation does not delay a parent’s right to go forward in filing a due process complaint, if that is what the parent chooses. Filing a request for and engaging in mediation also does not delay the expiration of the two year statute of limitations on filing due process. After the mediation has been filed, unless the parents, school district and area education agency agree otherwise, the child involved in the mediation remains in his or her present educational placement pending the outcome of the mediation.
It is important to note that what people say during mediation is confidential, and may not be used as evidence in a later due process hearing or civil court proceeding. If the parties come to a verbal agreement In the course of mediation, then that agreement must be put in writing and signed the parents and a representative of the school district. The written agreement is enforceable in court, which is important because neither the parent nor school district are required to go through a due process hearing in order to enforce its terms.
Parents have the right to file mediation request to resolve special education disputes with their child’s school district and the area education agency pertaining to matters including the following:
Eligibility for special education services
Evaluations
Educational placement
Implementation of the IEP
Need for more/different special education and/or related services
Compensatory services
Outcome of a manifestation determination review
Provision of free, appropriate public education.
Unlike due process hearings, the law requires that mediation be voluntary on both sides. This means that if a school district opposes a parent’s request for mediation, a mediation will not be held. However, school districts and AEAs often prefer mediation to due process since there is little down-side to them other than their attorney fee expenses, which in some states, are covered by the school district’s and AEA’s insurer.
Other than the prospect of attorney fees, there is little down-side for parents. Before thinking about filing a request and going it alone at a mediation, parents who think they cannot afford an attorney’s services should first speak with an attorney who represents parents in special education matters, and inquire how the attorney charges in regard to mediation proceedings.
Mediation does not delay a parent’s right to go forward in filing a due process complaint, if that is what the parent chooses. Filing a request for and engaging in mediation also does not delay the expiration of the two year statute of limitations on filing due process. After the mediation has been filed, unless the parents, school district and area education agency agree otherwise, the child involved in the mediation remains in his or her present educational placement pending the outcome of the mediation.
It is important to note that what people say during mediation is confidential, and may not be used as evidence in a later due process hearing or civil court proceeding. If the parties come to a verbal agreement In the course of mediation, then that agreement must be put in writing and signed the parents and a representative of the school district. The written agreement is enforceable in court, which is important because neither the parent nor school district are required to go through a due process hearing in order to enforce its terms.
Parents have the right to file mediation request to resolve special education disputes with their child’s school district and the area education agency pertaining to matters including the following:
Eligibility for special education services
Evaluations
Educational placement
Implementation of the IEP
Need for more/different special education and/or related services
Compensatory services
Outcome of a manifestation determination review
Provision of free, appropriate public education.
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