Chapter 11: Dispute Resolution Options — Understanding Your Options for Settling Disputes - Page 3

Resolution Session

[New] Within 15 days of the time the parent files a due process complaint, IDEA 2004 requires the school district to hold a meeting between the parents and the relevant members of the IEP team so that the complaint can be discussed. This meeting is called a resolution session. The resolution session must include the parents, relevant members of the IEP team and a representative of the school district who is authorized to make decisions for the district.

Specifics of the resolution session include:

• Unless the parents bring an attorney to the meeting, the school district is not allowed to bring one

• While not required, parents may bring an attorney whether or not the school district brings one, but parents' attorney fees for this meeting cannot be reimbursed by the school district

• If an agreement is reached during the resolution session, it is legally binding and must be signed by both parties

• Either party has three business days to consider the agreement and void it if they wish

• If both the parents and the school district agree in writing to waive the resolution session, or to use mediation to resolve their disagreement, the resolution session does not have to be held and the timeline for the due process hearing begins

• Even if the resolution session is held, if the complaint is not resolved to the parents' satisfaction within 30 days, the due process hearing may occur

• If the parent fails to participate in the meeting the school district may request that the complaint be dismissed by a hearing officer

• If the school district fails to hold the meeting or fails to participate in the meeting, the parent may seek the intervention of a hearing officer in order to begin the hearing

Due Process Hearing

Due process hearings are formal, quasi-judicial procedures in which parents and school personnel present arguments and evidence to an impartial hearing officer or administrative law judge. The hearing officer or administrative law judge is not an employee of the state department of education or the school district.

Many states have timelines by which a due process hearing must be held. If your state does not have a timeline, IDEA requires that the hearing be held and a final decision reached within 45 days of the time the request was filed. Some exceptions to this timeline apply, so be sure to understand all details of a due process hearing in your state.

If the hearing officer determines that the school district was at fault, parents may be awarded reasonable attorneys' fees.

[New] If the hearing officer determines that a parent's attorney has requested a due process hearing for reasons that were frivolous, unreasonable or without foundation, the hearing officer may award reasonable attorneys' fees to the state or school district. The hearing officer may also award attorneys' fees to the state or school district if either a parent or the parent’s attorney requested a due process hearing for an improper purpose such as to harass, cause unnecessary delay, or needlessly increase the costs of litigation. In such cases, the parent's attorney would be required to pay the award to the state or district.

Appealing a Due Process Hearing Decision to the State. Some states have a state appeal procedure that allows parents to file an appeal of a due process hearing decision with the state department of education. Information on this appeal procedure is available through your state department of education or Parent Training and Information Center.

Civil Lawsuit 

If parents are not satisfied with the results of a due process hearing, they may file a civil suit against the state or school district within 90 days of the date of the decision of the hearing officer (or state level review decision) or within the time limit established by state law.

Filing a civil lawsuit is the most extreme option available to parents. It requires that parents employ an attorney and go through extensive legal proceedings. However, in some cases it is the only option that will resolve the dispute and ensure that the student receives appropriate supports and services to ensure a free appropriate public education as required by IDEA.

Either the parent or school district may file a civil lawsuit. The lawsuit may be filed in federal, district and appellate courts, including the United States Supreme Court.

State Complaints 

In addition to the dispute options already discussed, IDEA requires every state to have a complaint procedure that allows any organization or individual to file a complaint alleging that a school district (or districts) has violated any of the provisions of Part B of IDEA — or the state's special education law or regulation.

So, state complaints can be filed for a broader range of issues than those allowed for due process complaints. Also, state complaints can also be filed on behalf of a group of students — allowing for complaints to challenge policies or practices that affect a group of students with disabilities.

School district actions that are violations of IDEA and, therefore, could be the basis for a state complaint include:

• Failure to conduct an evaluation within the required timeframe

• Failure to implement an agreed upon IEP

• Failure to provide Prior Written Notice before changing a student's IEP

State complaints must be filed within one year of the alleged violation and every state must have procedures for filing complaints that conform to the requirement in IDEA. Information on these procedures should be available from your state's department of education or Parent Training and Information Center.

At a minimum, the state complaint procedures must:

• Provide for an independent, on-site investigation within 60 days after the complaint is filed

• Give the party that filed the complaint an opportunity to submit additional information (either orally or in writing)

• Provide the local school district the opportunity to respond to the complaint

• Provide the local school district the opportunity to engage the complaining party in mediation or some other means of dispute resolution

• Provide for review of all relevant information and issue a written decision that addresses each allegation in the complaint including the reasons for the final decision of the state

• Include procedures for effective implementation of the state's final corrective actions ordered to be undertaken by the school district or districts.

The time in which a complaint must be resolved can be extended through an agreement between the parent (or individual or organization) if all parties agree to use mediation or other dispute resolution options.

Final Word

You should use some caution when giving the school written feedback in an attempt to communicate frustration about services for your child. If you have concerns, you should raise them. Just be aware that when you submit a written complaint about your child’s services, this may be construed as a formal complaint or due process request. Filing complaints, whether due process complaints or state complaints as allowed by IDEA, is serious business. Before proceeding, you should be well informed and understand federal and state policies about such actions. Be sure to get all available information regarding all complaint options prior to filing a complaint.

Table of Contents

• An Overview of IDEA Parent Guide
• Chapter 1: Pre-Referral Services
• Chapter 2: Response-to-Intervention
• Chapter 3: Referral/Request for Evaluation
• Chapter 4: Procedural Safeguards — Understanding and Exercising Your Legal Rights
• Chapter 5: Evaluation: Learning More About Your Child
• Chapter 6: Eligibility Determination: Determining Your Child's Need for Special Education
• Chapter 7: Individualized Education Programs (IEPs) — Developing Your Child's Education Plan
• Chapter 8: Transition — Planning Your Child's Future Success
• Chapter 9: Students in Private School: Understanding Your Child's Special Education Options
• Chapter 10: Student Discipline — Addressing Serious Behavior Issues and Concerns
• Chapter 11: Dispute Resolution Options — Understanding Your Options for Settling Disputes

Additional Resouces