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

2. 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?

3. 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

4. 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

5. 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

6. 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)

7. 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

8. 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

9. 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

10. 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

11. 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.

12. 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

13. 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

14. 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

15. IDEA RESOLUTION SESSION
34 CFR
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

16. 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

17. 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 (a) 20 USC 1415(f)(B)(I)
Resolution Session requirements

18. 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'

19. 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

20. 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

21. 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

22. 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

23. 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

24. 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

25. 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

26. 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

27. 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

28. 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

29. 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

30. 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

31. 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

32. 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

33. 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

34. 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

35. 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

36. 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

37. Questions and Answers