1 resolving special education disputes understanding when and how to use the new procedural...
TRANSCRIPT
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Resolving Special Education Disputes
Understanding When and How to Use the New Procedural Safeguard
System
Education Law Center November 28, 2006
www.elc-pa.org
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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
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Before a dispute needs formal dispute resolution . . .
Tool 2: What to do first Key is communication
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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Helpful Resources
Tool 13: Local, State and Federal Resources to Help