AASA, the Emperor's New Clothes, Special Education Mediations and Due Process Hearings

In Hans Christian Andersen's story, The Emperor's New Clothes, a vain king with an insatiable appetite for fine clothing, finds himself marching in a parade wearing nothing but his birthday suit. He is the victim of his obsession with sartorial splendor, and of a pair of swindlers who have told him that his "new clothing" is made from such wonderful stuff that it is invisible to anyone who is incompetent or stupid. After an elaborate charade in which the king is "dressed" in the new garments, his lord chamberlain, ministers and advisors who are fearful of losing their jobs, public recognition, and authority, heartily engage in the fraud proclaiming, "How beautiful the Emperor's new clothes are!" Notwithstanding their falderal, upon seeing the king walking naked in public, a small child says, "He doesn't have anything on!" Although the king knew the child was right, he decided that the parade would go on, and holding himself even more proudly, he continued the procession with the lord chamberlain walking along behind him carrying the train of his nonexistent coat.

This story came to mind when I read the 30 page paper issued on April 8, 2013, by the AASA (American Association of School Administrators). In it, the AASA recommends that Congress completely eliminate special education due process hearings and remove the provisions of the IDEA that make mediation agreements legally binding and allow attorneys to represent parents at those mediations. The AASA proposes to replace the procedures with state-approved IEP meeting facilitators, non-binding mediation, and provisions allowing parents to file law suits directly in federal court (think $$$ for the parents) without an opportunity to resolve disputes through state department of education administrative hearings.  Since due process hearings are less expensive than federal court proceedings, this would place an additional burden on parents who need to challenge school decisions.

What kind of thinking underlies proposals that would essentially place the fox in charge of the hen house? Are the AASA’s recommendations merely based on an arrogant and naive assumption that public education systems and their personnel are so highly expert and scrupulously thorough that they identify and accurately evaluate each and every child with a disability in every area of their suspected disabilities, write IEPs in a manner that will meet each child’s unique needs and conforms to the law, and that the school personnel who implement them are all equally competent and effective, and neither harbor prejudices nor have their hands tied by restrictions in regard to the assistance they are allowed to recommend or provide?

I don’t think so.

It seems more likely that like the king in the story above, the AASA and its members know when the education systems and personnel they represent aren’t appropriately garbed. But instead of acknowledging and taking responsibility for the nakedness of those systems and personnel, they prefer to advocate for the elimination of the mediation and due process hearing procedures that have an inconvenient tendency to reveal that public education agencies and school districts don’t always operate in compliance with the IDEA and its implementing regulations. By extension, the AASA would probably also support the elimination of studies, such as the one conducted by the federal Department of Education in 2009, which found that only twenty-eight states met the IDEA’s compliance standards.

If the AASA’s proposals demonstrate anything, they demonstrate the kind of overreaching on the part of public school agencies that Congress anticipated when it enacted the portions of the IDEA which afford procedural protections to the parents of children with disabilities.  I join with COPAA (Counsel of Parent Attorneys and Advocates) which has stated that the AASA document is nothing more than a shameful attack on parent and student civil rights.  See COPAA's statement at:  http://www.copaa.org/news/121292/AASA-Document-Nothing-More-Than-A-Shameful-Attack-on-Parent-and-Student-Civil-Rights-.htm

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.

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.