Resolving Special Education Disputes Understanding When and How to Use the New Procedural Safeguard System

1. Resolving Special Education DisputesUnderstanding When and How to Use the New Procedural Safeguard System Education Law Center November 28, 2006 www.elc-pa.org

2. Overview • Toolkit corresponds with this document • Dispute Resolution-What has changed? • Facilitated IEP meetings • Mediation • DOC complaints • Due process hearings and appeals • Tool 1: Changes in the law

3. Before a dispute needs formal dispute resolution . . . • Tool 2: What to do first • Key is communication

4. Facilitated IEP meetings • What is it? • Facilitator is neutral person to aid communication • It’s voluntary and free • ODR provides facilitator • Role of facilitator varies; not a decision-maker • Tool 3: Facilitated IEP Meeting Fact Sheet • Tool 4: Form is available to request this service • Mediation and due process are still available

5. Mediation • What is it? • Voluntary and Free • No attorneys present • Confidential • New: May result in binding agreement • Enforceable in federal or state court • Agreement must state that it is confidential • How to request mediation? • Tool 5: Mediation Request Form

6. DOC Complaints • States are required to have an administrative complaint system; in PA, it’s a DOC complaint • DOC has 60 days to investigate each complaint, gather information, and issue a written decision with findings and conclusions to support the decision. • The written decision should include corrective action – what the school should do and any award of compensatory education • Not every dispute can be resolved by DOC • Tool 6: Fact Sheet • How to file a DOC complaint • Tool 7: New form is available • Parents now must sign and must send to school • New statute of limitation - must file within 1 year • DOC must enforce hearing officer decisions from due process

7. Due Process Hearings • Big Changes • Tool 8: Due Process Fact Sheet • New: Due Process Complaint Notice • What is it? • Tool 9: Form is Available • Can ‘t rely on NOREP to request a hearing anymore! • Other party can claim that the complaint is not adequate within 15 days • Hearing Officer rules on adequacy in 5 days • If inadequate, parent can request to amend or file another complaint • School must respond to complaint within 10 days, unless it already issued a NOREP on the issue

8. Due Process Hearings • Resolution Session • School must schedule a resolution session within 15 days involving all relevant members of the IEP team. • School and parent can waive it or do mediation instead • If the parties agree, must enter into a binding written agreement • Enforceable in state or federal court • Voidable by the parent within 3 days • Not confidential unless the parties agree • Should I bring an attorney? • Cannot recover attorneys fees for resolution session • School cannot bring attorney unless parent does

9. Due Process Hearings • New Statute of Limitation • Must file within 2 years of when parent knew or should have known of the action • Exceptions • If the school misrepresented or withheld information from the parent relevant to the complaint, the time limit may be extended

10. Due Process Hearing • Timeline for Proceeding to Hearing • File Complaint Notice • Response in 10 days Resolution Session in 15 days  Adequacy Challenge in 15 days (Hearing Officer rules in 5 days) • If Hearing Officer finds Complaint Notice inadequate • Can request to amend or File New Complaint • 30 Day Resolution Period from date of complaint • 45 Days for Hearing and Decision will start when: • At the end of the 30 day resolution period, or • The parties agree to waive the resolution session, or • The parties state in writing that they cannot agree after the resolution session but before the end of the 30 day resolution period, or • The parties continue to mediate dispute beyond 30 day resolution period but one party withdraws from mediation process.

11. Due Process Hearings • Burden of Proof • The party with the burden of proof must convince the hearing officer by the preponderance of the evidence • If you stack one party’s evidence on one side of the scale, and the other party’s evidence on the other side of the scale, the party with the burden of proof must tip the scale ever-so-slightly in their direction to win the case • Old Rule was that the school had the burden of proof • Weast decision: Now the burden of proof is on the party requesting the due process hearing • Party with the burden of proof usually has to go first too at the hearing • Hearing officer may make exception if school is trying to change status quo • Tool 10: Fact Sheet

12. Attorney’s Fees and Costs • A parent who prevails at a hearing may recover reasonable attorney’s fees and costs • New: Parents may have to pay attorney’s fees of the school • No real reason to worry – only for frivolous or improper complaints • New: Parents can no long recover expert fees • Murphy decision • Reason to worry! • Tool 11: Fact Sheet

13. Proposed Changes to Chapter 14 Regulations • Start transition at 14 • Retain 15 cumulative day rule • 60 school or calendar days for evals • DOC enforcement of resolution session and mediation agreements • 2 year DOC statute of limitation • Tool 12

14. School Funding • The problem: unfair and inadequate system of school funding in PA • Pennsylvania’s costing out study: the goal is to determine how much it actually costs to give each student a quality education • Why does it matter? Kids with disabilities should be included in the study • Visit ELC’s website for more information

15. Helpful Resources • Tool 13: Local, State and Federal Resources to Help