Resolving Issues ADR, Due Process and CDE Complaints Presented By Amy Foody, Fontana SELPA

Why Do We Have Legal Proceeding in Special Education? Under IDEA, students with disabilities have rights under state and federal law. Students who are eligible for special education are guaranteed a free appropriate public education ( FAPE) Sometimes the District or agency and the parent disagree on what FAPE is for the student. The Law provides for ways for the parties to resolve these disputes. IDEA also provides a way to resolve issues of compliance. Issues where the procedures, education code was violated. Why Do We Have Legal Proceeding in Special Education?

Ways to Resolve Local Resolution State Intervention IEP meeting, meeting with site staff, Alternative Dispute Resolution ( ADR) State Intervention Mediation Only with Office of Administrative Hearings ( OAH) Due Process with Office of Administrative Hearings (OAH) State Complaint with CDE for issues of compliance. Ways to Resolve

Supports for Districts and parents with resolving complaints locally. Program Specialists/ Coordinator consultation Collaborative IEP meetings Facilitated IEP meetings Local Resolution Meeting Resolution Sessions Problem Solving Panels Information Problem Solving or Negotiation meetings Local Resolution

OAH – Due Process or Mediation only The Office of Administrative Hearings is the agency contracted by the state to provide a neutral third party to resolve disputes related to special education services, assessment, FAPE. OAH is made up of ALJs (Administrative Law Judges) and mediators. OAH – Due Process or Mediation only

California Department of Education ( CDE) The government agency that oversees the special education compliance for the state of California. Any one can file a CDE complaint on behave of a student California Department of Education ( CDE)

ADR Alternative Dispute Resolution Informal and semi formal processes to help resolve disputes prior to State or OAH assistance. Can be used to resolve complaints of all kinds. Key is having both parties amendable to resolving the dispute together. ADR

Non adversarial meeting between the parent and district representative for the purpose of resolving the issues and rebuilding trust. Parent can initiate District can initiate SELPA role is as a neutral facilitator. Very positive outcomes when both parities are willing to communicate and compromise. ADR meeting

Due PROcess filing timelines District or parent may file regarding the a refusal or proposal to change on initiate a change in identification, assessment or placement ( FAPE) Timelines: 10 days for a response 15 days ( Parent filing) Resolution session 15 days Notice of Insufficieny 30 days mediation Prehearing conference Hearing within 45 days Decision within 90 days Paperwork timelines 10 days before hearing statement of issues, notice of representation 5 Business days before hearing, notice of witness and evidence Due PROcess filing timelines

Due Process and Mediation A parent or school district may file for Due process and mediation or mediation only with OAH. If the parent files, the parent and district must attend a resolution meeting within 15 days of receiving the filing unless both parties agree to waive the resolution meeting in writing. Due Process and Mediation

If the parties resolve the dispute in resolution, it is binding. If the parties do not resolve then they can continue to work together to resolve or just attend the scheduled Mediation session. If the parties resolve in mediation it is binding, if not then the parties can continue to negotiate or proceed to hearing. At hearing the finial decision or order is given by an ALJ. Due Process cont.

When a parent files for mediation and due process, the school district is required to hold a resolution meeting within 15 days of receiving the notice of the filing. This meeting is required by federal law. It can only be waived if both the parent and District agree in writing. The purpose of the meeting is to give the parent and school district the opportunity to resolve the dispute before hearing. The process is often helpful in rebuilding trust and communication between the parties It is less formal than mediation, but legally binding and you have 3 days to change your mind regarding a settlement reached in resolution. Resolution Meeting

Resolution Session Continued Attendees could include members of the IEP team, school district representative and the parent. Attorneys were not intended to be part of this process but it the parent chooses to bring an attorney or advocate, they must notify the district. The District can not bring an attorney unless the parent does. If the parent refuses to attend, the District can request the case be dismissed. Resolution Session Continued

Preparing for Resolution Session Gather file for last 2 years, or three Identify staff to have at resolution session Review File and complaint Identify risks, strengths, District priorities, options for resolution. Identify the worst outcome and best outcome if no resolution. Determine Facilitator of the Meeitng

IDEA RESOLUTION SESSION 34 CFR 300.510 Within 15 days of receiving notice of the parent’s due process complaint, and prior to the initiation of a due process hearing, the LEA must convene a meeting with the parent and relevant member or members of the IEP team who have specific knowledge of the facts identified in the due process complaint. IDEA RESOLUTION SESSION

Purpose of the Resolution Meeting The purpose of the meeting is for the parent of the child to discuss the due process complaint or concerns , and the facts that form the basis of the due process complaint or concerns so that the LEA has the opportunity to resolve the dispute. Purpose of the Resolution Meeting

Resolution Session requirements Members: parent, relevant member or members of IEP team, representative of the public agency who has decision-making authority on behalf of that agency An Attorney for the LEA may not attend unless the parent is accompanied by an attorney The parent and the LEA determine the relevant members of the IEP Team to attend the meeting 34 CFR 300.510(a) 20 USC 1415(f)(B)(I) Resolution Session requirements

Resolution Session Requirements Cont' If the LEA is unable to obtain the participation of the parent in the resolution meeting after reasonable efforts (documented) the LEA may, at the conclusion of the 30-day period, request that a hearing officer dismiss the parent’s due process complaint. If the LEA fails to hold the resolution meeting with 15 days of receiving the notice or fails to participate in the resolution meeting, the parent may seek the intervention of a hearing officer to begin the due process hearing timeline. Resolution can only be waived if both parties jointly agree in writing. Resolution Session Requirements Cont'

Mindset for Resolution Desire to Re-establish Trust “Win Win” Open to Resolution and Compromise “Being Creative” Mutual Respect Ready to Participate in Open Communication Mindset for Resolution

The Process Steps to reach resolution: Determining possible outcomes Know the case Know your key members Opening Summarize issues and proposed resolutions presented in complaint or by parent Listen Clarification of Issues by parent District response Negotiating Agreements Written Settlement, IEP Addendum or adjourn The Process

Tools: Setting the Stage Introduction Purpose of the meeting Goals for the meeting Role of the Facilitator Get agreement on: Ground rules Confidentiality Discuss desired outcomes Sample Script Group memory format Tools: Setting the Stage Reslution Rules Sample Script Group Memory

Defining Possible Outcomes A full agreement with waivers to resolve the case Interim agreement Partial agreements to follow-up between resolution and mediation session A better understanding of concerns, issues and proposed resolutions. Agreement in an Early Resolution Session or Informal Resolution Session to hold an IEP to put agreements in place. A IEP addendum signed by parties at the resolution session. A letter presenting the offer made by the District at the resolution session. Defining Possible Outcomes

Tools: Group Memory Format Group Memory is a charting process that allows for a uniform focus. Group Memory allows for a visual summary of the discussion occurring during the meeting. Group Memory facilitates trust because everything is put out in the open. Tools: Group Memory Format

I will ask each of you to present specific information. Only one person may speak at a time While one person is speaking everyone else should listen You are asked to stick to either the issues contained in the letter requesting the mediation/fair hearing or the response letter. I have provide a worksheet or (I will note information on the board) to facilitate the overall process. We are not here to argue points of law or the facts of the case. We are here today to clarify and summarize the issues to facilitate a possible resolution. I ask that we stay open minded to ideas and resolutions. I ask that we all work for solutions that address the student’s needs and refrain from personal statements toward the other party. Sample Ground Rules

Facilitating Discussion Step one: Parent summarize key issues to District. Step two: Facilitator summarizes what was heard. Step three: Ask District is they have any clarifying questions/or comments regarding parent discussion of key issues. Step four: Ask Parent if they have any clarifying questions regarding the District discussions. Facilitating Discussion

Facilitating Discussion Con’t Step 5: Ask Parent to clarify and discuss proposed resolutions. Step 6: Ask District if they have any clarifying questions. Step 7: Ask District to respond to the Parent issues and resolutions (this step can be modified depending on the needs of the group). Step 8: Discussion on proposals and identifying agreements. Step 9: Conclusion: Restate agreements or state that we are not in agreement today but have had productive discussions regarding the issues. Facilitating Discussion Con’t

Resolution Agreements If a resolution to the dispute is reached at the meeting the parties must execute a legally binding agreement signed by the parent and a representative of the agency. The agreement is enforceable in any State court of competent jurisdiction or in a district court of the United States. If the parties execute such an agreement, a party may void the agreement within 3 business days of execution. Attorney fees are not available for the resolution meeting. Resolution Agreements

Mediation Mediation is voluntary Most cases are resolved in mediation Mediation is facilitated by a neutral mediator from OAH. Agreements are final and binding Mediation is a process of compromise. Attendees include District representative/s parents, attorneys and advocates often attend. ( Mediation only cases: No Attorneys or paid Advocates) Mediation

Preparing for Mediation Review file again, look for risks and strengths. Identify potential resolutions, what is the Best you can expect and Worst that could happen, what is most likely? Know what the Board and Cabinet support in resolution Identify witnesses, determine strengths and weaknesses. Com prepared to listen and be creative while keeping it about the student Preparing for Mediation

Negotiating Mediation and resolution sessions require negotiations. Look for interests, negotiate on interests not positions. Attorney fees are a distributive negotiation, not interests based usually Negotiating

Settlement Agreements Settlement agreements provide protection for the District. You give parent something and District gets waivers Get a sample from your counsel Resolutions session and mediation are slightly different. Resolution sessions have a 3 day cooling off period. Waivers vary depending on the case. Know what you can and cannot live without. Parent attorneys often will not agree to prospective waivers or future waivers. Some templates have tort claims, in the waiver. Know your case and if that is necessary. 504, ADA are very important. Settlement Agreements

Hearing A formal proceeding in front of the Judge. Prior to hearing a Pre Hearing Conference is held by phone with both parties Witnesses are under oath and the proceeding is tape recorded Both sides present evidence and witnesses Final decision is made by the ALJ ( Judge) Decision can be appealed to federal or state court within 90 days of the date the decision is issued. Hearing

Preparing for Hearing Identify witnesses Produce a prehearing conference statement Development evidence Binder Identify expert witnesses, collect resume and vitas Schedule witness preparation, including potential questions. Preparing for Hearing

Compliance Complaints May be filed by anyone. May be filed with California Department of Education when someone alleges a State or Federal special education law or regulation was not implemented. May be resolved through ADR or through an investigation by the District and the State. Compliance Complaints

Responding to Compliance Complaints Review file and complaint. Respond to each item individually Collect evidence to support compliance Identify compliance or non compliance. If non compliant, write what you have done to correct. If non complaint, consider ADR or Facilitate IEP to resolve. Responding to Compliance Complaints

Most complaints are the result of a communication and trust break down. Most Due Process Complaint resolve before hearing, consider resolution seriously. Do not be afraid to talk to parent or representative at the first indication of an issue. Compliance violations are usually not the real issue, there is usually a trust of communication break down. Things to Remember

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