Dispute Prevention and Dispute Resolution in Special Education

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Presentation transcript:

Dispute Prevention and Dispute Resolution in Special Education Jamila C. Pollard, Esq. Program Manager Senior/Legal Officer Family Engagement and Dispute Resolution Division for Special Education Services and Supports 1/1/2019

Learning Targets I can discuss some techniques and strategies to possibly prevent special education disputes. I can compare and contrast the three dispute prevention processes and the three dispute resolution processes. I know where to obtain information regarding the dispute prevention and resolution processes. I can help guide parents toward the specific dispute prevention or resolution process(es) that would be most appropriate for their circumstance. 1/1/2019

It’s all about the kids… 1/1/2019

A Parent’s Experience with the Special Education System 1/1/2019

What Can Educators Do? • Communicate, communicate, communicate • Build trust • Listen • Eliminate jargon • Structure IEP Team meetings • Understand perspectives • Reduce power imbalance • Support family engagement A major system of the complex school organization that develops quality links between local school professionals and the parents and community the school is intended to serve 1/1/2019

What Can Parents Do? Listen. Ask questions. Clarify. Be clear about their goals. Focus on the positives. Keep the focus on meeting their child’s needs Present options in a collaborative way (“we can” instead of “you should”) Be mindful of their emotional pressure gauge as they work with their child’s school From Steps to Success: Communicating with Your Child’s School from CADRE 1/1/2019

Family Engagement and Dispute Resolution Unit Providing a continuum of resources for Georgia families and school districts Family Engagement Georgia Parent Mentor Partnership State Advisory Panel (SAP) Collaboration with Parent2Parent of Georgia Collaboration with Title I Family-School Partnership Program Dispute Prevention Procedural Safeguards (Parents' Rights) Special Education Help Desk IEP Facilitation Dispute Resolution Mediation Formal Written Complaints Due Process Hearings/ Resolution Session Meetings 1/1/2019

A Continuum Tension Conflict Dispute 1/1/2019

What to do when tension or conflict arises? First Recommendation: Utilize techniques and strategies at the school level to possibly prevent disputes Second Recommendation: Contact your parent mentor and/or special education administrator in the district to assist in working out the differences Final Recommendation: When a resolution cannot be worked out locally, utilize the GaDOE’s and IDEA’s dispute prevention and resolution processes . 1/1/2019

A Continuum of Dispute Prevention and Resolution Processes Procedural Safeguards (Parents’ Rights) Special Education Support Desk IEP Facilitation Mediation Written Formal Complaint Due Process Hearing Resolution Sessions 1/1/2019

Dispute Prevention Processes 1/1/2019

1/1/2019

Procedural Safeguards (Parents’ Rights) What are they? Written notice provided to parents of students with disabilities, explaining the rights of parents and students under IDEA What rights are explained? Independent Educational Evaluations Prior written notice Parental Consent Access to education records Mediation, Formal Written Complaints, Due Process Hearings Child placement during pendency of due process complaint Procedures for students subject to placement in interim alternative educational setting Requirements for unilateral placement by parents of children in private school at public expense Civil actions and Attorneys’ fees 1/1/2019

Procedural Safeguards (Parents’ Rights) When do I get them? One time a school year, except also given a copy: (1) upon initial referral or parent request for evaluation; (2) upon receipt of first State complaint and first due process complaint in a school year; (3) when a “change of placement” occurs under discipline procedures; and (4) upon request by a parent Where can I access them electronically? On GaDOE website (may also be available on school district website) 1/1/2019

Special Education Support Desk What is it? A telephone and email information and support line designed to answer special education-related questions and provide individuals with useful information and resources Who can use it? Anyone, including parents, teachers, school district administrators, and members of the community 1/1/2019

Special Education Support Desk What type of information is provided? Explanation of IDEA procedural safeguards (Parents’ Rights) Information about, access to, and assistance with the family engagement resources and dispute prevention and resolution processes Discussion of options for addressing concerns or disagreements about a student’s special education program Information relevant to the education of students with disabilities Information about other agency resources and materials 1/1/2019

Special Education Support Desk Who is providing the information and support? Members of the GaDOE’s Family Engagement and Dispute Resolution Unit How do I access it? Call (404) 657-9968 Email at SPEDhelpdesk@doe.k12.ga.us 1/1/2019

IEP Facilitation What is it? A voluntary, collaborative dispute prevention and resolution process used when members of an IEP Team agree that the presence of a neutral third party would help facilitate communication and problem solving It is the same as any other IEP Team meeting, except that a neutral facilitator joins the meeting 1/1/2019

IEP Facilitation Who can request it? Parents or schools districts in the following 36 counties/districts: APS, Bartow, Bryan, Butts, Cartersville City, Catoosa, Charlton, City Schools of Decatur, Clarke, Clayton, Cobb, Columbia, Cook, Coweta Charter Academy, DeKalb, Evans, Fulton, Gainesville City, Georgia Cyber Academy, Gordon, Greene, Ivy Preparatory Academy at Kirkwood, Jackson, Lamar, Lowndes, Miller, Muscogee, Oconee, Pierce, Richmond ,Rome City, Scintilla Charter Academy, State Schools, Turner, Union, and White 1/1/2019

IEP Facilitation Why would someone request it? To help the IEP Team overcome any pressure or anxiety associated with complex or controversial meetings To assist an IEP Team who has had a history of difficult interactions What will the facilitator do? Guide the discussions by asking student-focused questions Assist IEP Team members in the thoughtful, productive construction of a quality IEP Help create an agenda, group norms, and expected outcomes for the meeting Encourage full participation of all members of the IEP Team 1/1/2019

IEP Facilitation Who are the facilitators? Our facilitators represent a diverse group of individuals with backgrounds including: parents of students with disabilities attorneys mediators former special education teachers and administrators college professors How do parties request an IEP Facilitation? Access the FIEP Team meeting request form from a participating school district’s website or go to the GaDOE’s FIEP webpage for links to all participating districts Complete and submit the FIEP Team meeting request form to the special education director in the district, who will complete and send to the GaDOE 1/1/2019

Additional information about FIEP Team meetings http://www.gadoe.org/Curriculum-Instruction-and- Assessment/Special-Education-Services/Pages/IEP- Facilitation.aspx (GaDOE) http://www.directionservice.org/cadre/fieptrainingvideos.cfm (CADRE) https://vimeo.com/180313121/6545e683ec (Illinois) https://www.youtube.com/watch?v=C- bFi_zUuuA&feature=youtu.be (Florida) http://www4.esc13.net/fiep/fiep-a-facilitated-iep-meeting (Texas) Facilitated IEP sessions on Friday at 8:30 and 9:25 in Room 111 All FIEP related documents can be accessed on the Ga DOE website on the dispute resolution page. 1/1/2019

Dispute Resolution Processes 1/1/2019

Dispute Resolution Processes under the IDEA Mediation (34 C.F.R. § 300.506) Formal Written Complaints (34 C.F.R. §§ 300.151-300.153) Due Process Hearing Requests (34 C.F.R. §§ 300.507-300.518) Resolution Sessions (34 C.F.R. § 300.510) 1/1/2019

Mediation What is it? Who can request it? A voluntary process that brings parents and school districts together to resolve their disagreements through the use of a skilled, impartial mediator Who can request it? Parents or school districts What is the time limit for requesting? None specified 1/1/2019

Mediation What issues can be resolved? Who resolves the issues? Any matter under IDEA and the state special education rules Who resolves the issues? Parents and school districts with assistance of a mediator How are the issues resolved? Through a legally binding, written mediation agreement signed by both parties 1/1/2019

Formal Complaints What is it? Who can initiate it? A written complaint to the GaDOE alleging violations by the district that need to be investigated Who can initiate it? Any person or organization What is the time limit for filing? One year from the date of the alleged violation 1/1/2019

Formal Complaints What issues can be resolved? Alleged violations of IDEA and state special education rules Who resolves the issues? GaDOE Division for Special Education Services and Supports How are the issues resolved? Contracted investigator conducts investigation and interviews all relevant parties The GaDOE issues a written decision containing findings of facts and conclusions within 60 days of filing unless extended for exceptional circumstances If a finding of non-compliance is made, then appropriate corrective action is required 1/1/2019

Due Process Hearing Request What is it? A written document used to request a formal hearing before an administrative law judge (ALJ) Who can initiate it? Parents or school districts What is the time limit? Two years from when the parties knew or should have known of the alleged problem 1/1/2019

Due Process Hearing Request What issues can be resolved? Any matter related to the identification, evaluation, or educational placement, or provision of a free appropriate public education (FAPE) to the child Who resolves the issues? An administrative law judge (ALJ) How are the issues resolved? After the ALJ considers pleadings and evidence (including witness testimony) in a formal, judicial hearing, he/she issues a written decision within 45 days after the 30-day resolution period (unless extension granted) 1/1/2019

Resolution Session What is it? Who can initiate it? A meeting held between a parent and district to resolve issues listed in a due process hearing request Who can initiate it? District must hold the meeting with the parent unless both parties agree in writing not to have the meeting or to use mediation instead What is the time limit? Must occur within 15 days of the district receiving notice of the parent’s due process hearing request 1/1/2019

Resolution Session What issues can be resolved? The issues listed in the due process hearing request Who resolves the issues? The parent and school district How are the issues resolved? Through a written resolution agreement signed by both parties Legally binding after 3 business days 1/1/2019

POP QUIZ 1/1/2019

Who am I? If you use me, I can look back at certain issues that occurred at least 2 years ago. Due process hearing request I allow the GaDOE to make the final decision regarding whether the district was out of compliance with the IDEA. Formal Complaint 1/1/2019

Who am I? I am voluntary and use a third party to help parties reach a binding, legal agreement. Mediation I allow the parties to resolve their issues and reach a legal agreement, but it is only binding after 3 days. Resolution Session 1/1/2019

Who am I? I am an easy way to ask a GaDOE employee questions related to special education? Special Education Support Desk I help facilitate communication and problem solving at IEP Team meetings through a neutral third party? IEP Facilitation 1/1/2019

Who am I? Both of us result in an outside party making the final decision; one decides in 60 days and the other in 45-75 days, sometimes longer. Formal Complaint and Due Process Hearing Request I am the only resolution process that can be initiated by individuals/organizations other than parents or districts. Formal Complaint 1/1/2019

Who am I? I provide a full explanation of specific IDEA rights and am given out every school year. Procedural Safeguards (Parents’ Rights) I am a partnership where parents in my local school district provide assistance to other parents. 1/1/2019

Now that you know the dispute prevention and dispute resolution processes, where can you find more information regarding those processes? 1/1/2019

GaDOE Dispute Prevention and Resolution Resources http://www.gadoe.org/Curriculum-Instruction-and-Assessment/Special-Education-Services/Pages/default.aspx Special Education Questions & Support (404) 657-9968 SPEDHelpDesk@doe.k12.ga.us 1/1/2019

What is available on the GaDOE website? Overview Link Dispute Resolution Comparison Chart Formal Complaints, Mediation, and Due Process Hearing Links Forms and FAQs Due Process Hearing Decisions (FY 2001- 2018) Dispute Resolution Parent Guides (IEP Facilitation, Mediation, Written State Complaints, Due Process Complaints/Hearings, Resolution Meetings) English and Spanish Dispute Resolution Comparison Guide 1/1/2019

What is available on the GaDOE website? Parent Rights Link Parent Rights Videos (7) English and Spanish Parent Notice/Consent/Confidentiality Evaluations and IEEs LRE Private School Placement Discipline Procedures/Rights Dispute Resolution Surrogate Parent/Transfer of Rights Condensed Parent Rights Full Parent Rights Arabic, Chinese, English, Japanese, Korean, Spanish, Vietnamese Special Education Parent Supports and Legal Aid Providers 1/1/2019

What is available on the GaDOE website? Parent Information Fact Sheets Assistive Technology Discipline Due Process Extended School Year Services Evaluations Formal Complaints FBAs and BIPs Helping your child with disabilities with homework IEP Mediation Person-Centered Planning Preparing your child with disabilities for kindergarten Reevaluations and IEEs Transition from Early Intervention to Public School Transition to Life after High School Includes “Facts you should know”, “Tips for Families”, and “Where to go for more information.” *Available in English, Arabic, Chinese, Japanese, Korean, Spanish, and Vietnamese 1/1/2019

Now that you know the dispute prevention and resolution processes, and where the information regarding those processes is located, how do you guide parents toward the most appropriate dispute prevention or resolution process? 1/1/2019

Procedural Safeguards (Parents’ Rights) Benefits Considerations Readily available (get one every year ) May be hard to understand Provides a basis of knowledge Does not include every IDEA issue Videos and Fact Sheets for certain topics May not go into depth No cost 1/1/2019

Special Education Support Desk Benefits Considerations Easy way to ask special education related questions May not be able to provide in-depth answers Can refer parties to appropriate personnel and resources as needed No legal advice provided Saves time for all involved May be seen as impersonal Can help resolve issues more quickly and easily (e.g. contacting SPED director) May not completely resolve an issue Information from GaDOE personnel No cost 1/1/2019

IEP Facilitation Benefits Considerations May build and improve relationships among IEP Team members Voluntary Team members may feel better heard when a facilitator is involved Not available in all school districts Can help resolve disagreements more quickly Facilitator will not address issues unrelated to the IEP Keeps decision-making with the Team members who know the child best Facilitator will not make decisions or determine if Team members are right or wrong Neutral, third party facilitator Facilitator is neutral and not an advocate Scheduled just like any IEP Team meeting No cost 1/1/2019

Mediation Mutually Developed and Agreed Upon Solution Voluntary Benefits Considerations Mutually Developed and Agreed Upon Solution Voluntary Solution in short period of time Less likely to reach resolution if not used early on Flexibility in Solution Can be emotional, tiring, and frustrating process Helps everyone better understand differing points of view Complex situations may require more than one mediation session Less Adversarial No guarantees that mediation will lead to a written agreement Confidential Meet face-to-face Legally binding and enforceable No cost 1/1/2019

Formal Complaints Benefits Considerations External investigation Takes 60 days for resolution No cost; mediation also available Cannot overturn an IEP Team decision Mainly a procedural rather than substantive review Requires no legal representation; easy to file Remedies not as extensive as judicial remedies and limited by law No face-to-face adversariness No mutually developed or agreed upon resolution Can result in remedies (e.g. compensatory education, declarative/injunctive relief) Investigation limited to issues within 1 year of filing Can result in district-wide change and awareness Final decision issued and no direct appeal process (may request mediation or due process hearing) 1/1/2019

Due Process Hearing Request Benefits Considerations Stay put mechanism Adversarial/Meet face to face in hearing Broad range of relief allowed (“grant appropriate relief”) Costly in time, emotion, and money; district will have attorney representation More extensive relief (e.g. compensatory education, tuition reimbursement after unilateral placement) Mainly a substantive rather than procedural review If successful, can petition for attorney’s fees Can place strain on relationships Can look back 2 years or more in certain cases Limited type of issues that can be raised Required resolution session meeting unless both parties waive Judge who does not know the child is making the decision (no mutually developed or agreed upon resolution) Appealable decision May take up to 75 days for a resolution (30 day resolution period plus 45 days for hearing/decision) 1/1/2019

Resolution Session Benefits Considerations Required resolution session meeting unless both parties waive Discussions are not confidential Mutually Developed and Agreed Upon Solution No guarantees that resolution session will lead to a written agreement Solution in short period of time; may prevent having to go to a hearing Either party may cancel the agreement within 3 days No cost Usually limited to issues raised in the due process hearing request District can only bring attorney if parent chooses to bring an attorney Meet face-to-face Helps everyone better understand differing points of view Legally binding and enforceable 1/1/2019

1/1/2019

Scenario #1 Student not receiving 1 hour per week of counseling services Teachers not implementing student’s behavior intervention plan (BIP) Student received multiple detentions, in-school suspension, and out-of-school suspension Parental concerns not being addressed after repeated contacts with case manager, lead teacher, and administrators 1/1/2019

Scenario #2 8-year student with Autism Parents and district cannot reach agreement on placement for next school year Student has received all special education and related services at home Parents want to continue 1-on-1 program at home and not “experiment” by putting student in regular school setting District believes student is ready to be in school with peers and concerned about the least restrictive environment (LRE) 1/1/2019

Scenario #3 4th grade student with mild cerebral palsy and developmental delays Receives instruction in small group setting Parent believes student will learn best when educated with non-disabled peers and wants student in general education classes District believes the current placement is appropriate based on severity of student’s disability and need for individual attention and instruction 1/1/2019

Scenario #4 5th grader found ineligible for special education for last 2 years Parents feel strongly that student should be eligible and that eligibility is the only thing that will ensure that the school will be responsible for meeting the student’s needs School psychologist said student’s academic performance is within normal limits for her age and grade; district maintains student does not need special education services 1/1/2019

Can you hit the “bullseye”? Can you discuss some techniques and strategies to possibly prevent special education disputes? Can you compare and contrast the three dispute prevention processes and the three legally- mandated dispute resolution processes? Can you direct parents on how to obtain information regarding the dispute resolution processes? Can you help guide parents toward the specific dispute prevention or resolution process(es) that would be most appropriate for their circumstance? 1/1/2019

Jamila C. Pollard, Esq. jpollard@doe.k12.ga.us (404) 657-7329 Any Questions??? Jamila C. Pollard, Esq. jpollard@doe.k12.ga.us (404) 657-7329 1/1/2019