In Episode #7 of “How to Win at the IEP Table”, we are going to look at dispute resolution options under IDEA.
IDEA requires each public agency ensure that dispute resolution procedures are established and implemented to allow both parties, (parents and school districts) to dispute any matter regarding a student’s special education program. This dispute resolution process must include any matter arising prior to the filing of a due process complaint as well as a mediation process.
Many disputes arise during the development and implementation of a child’s IEP. Parents may have disputes with the school district or within the IEP team about how to implement supports and services for the child. These disputes can occur when the school district:
- Refuses to evaluate a child
- Refuses to provide supports and services for a child
- Refuses to schedule IEP meetings
- Refuses to provide prior written notice about changes to an IEP
- Violates your child’s right to a free and appropriate public education
- Violates the rules of your child’s IEP
In some cases, the dispute may involve a delay about when services will be provided; in others, the school district is simply refusing to provide a specific service parents are seeking for their child. In these scenarios, parents have six options for resolving a dispute:
- Facilitated IEP
- Informal Dispute Resolution
- Alternative Dispute Resolution
- Mediation
- Due Process
- State Compliance Complaint
In this article, I will be discussing items 1-5. I have already spoken about the State Compliance Complaint in Episode #6, which you can find at this link: https://advocates4angels.com/uncategorized/how-to-win-at-the-iep-table-with-a-state-compliance-complaint/
1. Facilitated IEP Meeting
A facilitated IEP meeting is an informal approach to resolving disputes between parents and schools.
IEP facilitation is not mentioned in IDEA and is not one of the dispute resolution options described in the law’s procedural safeguards. However, it is being used to help IEP teams reach agreements without requiring a parent to file for due process and similar to an IDR, IEP facilitation is an approach on the rise.
Some State Education Agencies, (SEAs) provide parents and school districts with the option of facilitated IEP meetings. When relationships between parents and schools are strained, facilitated meetings may be beneficial. It’s important to remember that this approach is not required or addressed under IDEA and may not be available in your school district. However, there is no reason why a parent cannot request a Facilitated IEP meeting.
Similar to an IDR, IDEA does not address IEP facilitation. This means that there is no requirement in IDEA for school systems to provide an impartial facilitator for IEP Team meetings. While the use of IEP facilitation has become more popular, facilitators may not be available in all school districts and are not required.
A facilitated IEP team meeting is one that includes an impartial facilitator. The facilitator is not a member of the IEP Team but, rather, is there to keep the IEP Team focused on developing the child’s program while addressing conflicts as they arise.
The facilitator can help promote communication among IEP Team members and parents and work toward resolving differences of opinion that may occur concerning the provision of a free appropriate public education to a child. The facilitator helps keep the IEP Team on task so that the meeting purposes can be accomplished within the time allotted for the meeting.
The IEP facilitator can help support the full participation of all parties. The facilitator does not impose a decision on the group; the facilitator clarifies points of agreement and disagreement and can model effective communication and listening for the IEP Team members. When disagreements arise, the facilitator can help encourage the members to identify new options. Most importantly, the impartial facilitator ensures that the meeting remains focused on the child.
All factors as mentioned above list the intent of the Facilitated IEP meeting. However, the majority of Facilitated IEP meetings I have attended have not enforced these intentions, which have resulted in an unsuccessful outcome for parents. In most cases, the district has used a Facilitated IEP as just another delay tactic. However, I always have an open mind and would make this decision on an individual basis. Every district is different, and it is possible that you may be able to come to a resolution by utilizing the Facilitated IEP meeting option.
2. IDR
If a parent is unable to find resolution to a disagreement while working with the IEP Team, a parent has the right to request an ‘Informal Dispute Resolution” meeting prior to filing a due process or state complaint.
Informal Dispute Resolution (IDR) is a voluntary and informal meeting between parents and a school district. During these meetings, both sides can come to a solution for how to move forward in the implementation of an IEP without having to go through a Due Process Hearing.
When relationships between parents and schools are strained, an IDR meeting may be beneficial. It’s important to remember though, that this approach is not required or addressed under IDEA and must be requested by parents in an effort to resolve disputes. Similar to the Facilitated IEP, IDEA does not address the IDR.
I have found the IDR to be an effective and beneficial advocacy strategy in resolving disputes for my clients. After working diligently with the IEP team in the IEP development process, if the IEP team is unwilling to resolve areas in dispute or award the child the supports and services parents are seeking, I request an IDR meeting.
This meeting is held with the parents, the Special Education Director, and me. During the meeting I present the case by providing the facts and evidence to advocate for the Sped Director to come to a resolution in lieu of filing a state or due process complaint. My thought behind an IDR is that the Special Education Director is typically more willing to come to an agreement and avoid being found out of compliance by the state or running the risk of a due process complaint. Now I must caution that every district is different and therefore, this is not always the case but it is an option. When an advocate lays out the facts and evidence of the case and is successful in advocating for the Special Education Director to agree with the parent’s requests, an IDR is a very good option.
3. Alternative Dispute Resolution Meeting (ADR):
An ADR is the formal resolution meeting. The resolution process is a key change in IDEA, added in its 2004 reauthorization. IDEA requires: The LEA must convene a resolution meeting when a parent files a due process complaint. Its purpose is to give the parties the opportunity to meet and attempt to resolve the issues without holding a due process hearing.
Unlike the Mediation process, the resolution process is not voluntary. When the LEA receives a parent’s due process complaint, it must, within 15 days (and before it convenes a due process hearing, convene a resolution meeting unless both parties agree in writing to waive the meeting, or both agree to use the mediation process instead. Convening resolution meeting is not required if the public agency (meaning, the school system) files the due process complaint.
The decision regarding whether the two parties come to an agreement to waive the resolution meeting is left to the discretion of states and LEAs (Local Education Agencies). Neither can unilaterally (that is, on their own) waive the meeting.
The ADR meeting provides an opportunity “for the parent of the child to discuss their due process complaint, and the facts that form the basis of the due process complaint, so that the LEA has the opportunity to resolve the dispute that is the basis for the due process complaint. [§300.510(a)(2)]
An ADR is a controversial issue, and most attorneys don’t care for ADRs or Mediations because they believe it gives the district time to gather information regarding the due process complaint. That being said, the decision regarding whether you want to move forward with an ADR is something you should discuss with your attorney and must be considered on a case-by-case basis.
As stated above, the Alternative Dispute Resolution meeting can be waived under two circumstances:
- when the parent and LEA agree in writing to waive the meeting, and
- when the parent and LEA agree to use the mediation process in §300.506. [§300.510(a)(3)]
4. Mediation §300.506
Mediation is similar to an ADR, but it involves you and a representative of the school district to meet with a neutral third-party. This third party will help facilitate the conversation to reach a fair resolution of the dispute, but the state mediator (neutral third party) has no authority to make a decision about your child’s case or IEP.
In my experience, mediations have served to be ineffective because the state mediator has no authority to hold the district accountable even if they see the district is out of compliance with state or federal law. Now I must say that this may not always be the case and should be decided contingent upon your district and the case issues. If the district is willing to resolve the issues and avoid a due process complaint, a mediation may serve to be a good option.
Because the mediator’s job is to be impartial and their sole role is to bring both parties to an agreement, they cannot place any kind of pressure on district administrators to do the right thing even if it is according to the law. For this reason, I have seldom experienced a mediation that has ended in a resolution and in the end, the district has gleaned many facts about the issues in dispute which gives them an opportunity to begin to build their own case against the parents.
The intent of a mediation is to allow parents and school personnel to sit down with an impartial third person (mediator) to discuss the issues in which they disagree, and try to reach a resolution.
Mediation should provide a positive, less adversarial approach to resolving disputes between parents and school districts. The state is obligated to provide the assistance of a skilled and impartial mediator to support the parties involved in the dispute to communicate openly and respectfully about their differences as they try to reach an agreement or compromise. The decision-making power resides with the participants in mediation. Conversely, this is not always the case in my experience with the mediation process. I have witnessed states who have failed to adhere to their obligation by employing mediators who were far from skilled and knew little about IDEA or special education.
IDEA requires that the mediation process meet certain, specific conditions, which are as follows:
- Mediation must be voluntary on the part of both parties.
- Mediation may not be used to deny or delay a parent’s right to a due process hearing or to deny any other right under Part B of IDEA.
- Mediation must be conducted by a qualified and impartial mediator who is trained in effective mediation techniques.
- The state must select mediators on a random, rotational, or other impartial basis.
- The state must bear the cost of the mediation process.
- An agreement reached by the parties must be set forth in a written mediation agreement.
- Discussions that occur during the mediation process must be confidential. They may not be used as evidence in any subsequent due process hearings or civil proceedings. The parties to the mediation process may be required to sign a confidentiality pledge prior to the beginning of the mediation.
The public agency must make sure that its representative participating in mediation has the authority to enter into a binding agreement on its behalf. A parent may choose to have a friend or advocate attend the mediation session. While there is nothing in IDEA that prohibits a parent or public agency from having an attorney attend, this does not follow the spirit of the mediation process which is to come to an agreement by speaking freely and informally. The presence of an attorney could contribute to a potentially adversarial tone that may not serve to be in the best interest of the child.
5. Due Process Hearing
A Due Process Hearing is a formal hearing where both parents and the school district present their arguments before a judge, who will decide how the matter should be resolved. Both sides can have legal representation and the hearing often follows the same procedures as a traditional trial, with each side presenting evidence and arguments and may utilize expert witnesses.
Due Process begins with a parent filing a complaint against the school district. This typically will lead to an ADR, where parents and the school district can informally discuss the issues, or mediation if both sides feel that a third party is necessary. If an agreement cannot be reached, then the next step is a Due Process Hearing.
Due Process Hearings are solely for special education disputes and are based on a school district’s failure to provide a FAPE (Free and Appropriate Public Education).
If the school district failed to follow certain administrative procedures, such as failing to provide written notice about a change or violating a timeline, then the complaint may be seen as frivolous unless it directly impacted the child’s education. This is the difference between a state complaint and a due process complaint. A state complaint would include administrative violations in which the district violated procedural issues whereas a due process complaint is filed when substantive issues are violated in terms of a FAPE.
A Due Process Hearing will include legal representatives for both the school district and the parents who will present their sides of the case before an impartial Administrative Law Judge. The judge will review all evidence, including opening and closing statements, expert witness statements and testimonies, and other types of evidence, to make a decision about your child’s case.
A Due Process Hearing can result with:
- The judge ruling in favor of your child and requiring the school district to resolve the complaint; or
- The judge ruling in favor of the school district, which will not be required to implement any changes in your child’s case.
However, even if the judge rules against your complaint, you can still appeal the decision in a state court or a federal court if you disagree with the Due Process Hearing’s results.
In closing, in all cases where the family and school disagree, it is important for both sides to first discuss their concerns and try to compromise. There are several informal ways in which parents and school staff might attempt to work out disagreements regarding a child’s special education program. It is always best to try and come to a resolution by working with your IEP team. When that fails, the Facilitated IEP meeting, Informal Dispute Resolution meeting, and a State Compliance Complaint are all viable options prior to filing for due process.
As an advocate of 25 years attending thousands of IEP meetings for my clients, I have been very successful in utilizing the Informal Dispute Resolution options to resolve special education disagreements. These options are great alternatives before considering a Due Process complaint which is a costly, stressful, and risky in that there is no guarantee for a parent to prevail. On the other hand, after the parent has exhausted all informal dispute remedies, there are situations in which Due Process is necessary and required when the school district is unwilling to adhere to IDEA or resolve disputes with parents of a student on an IEP.
Cheering you on always!
Valerie Aprahamian
If you haven’t joined our Private Special Education Parent Empowerment Facebook Group yet, you should check it out here.
Here’s what parents are saying about the group:
“I take my job of advocating for my sped students very seriously! I love your page, Valerie. Thank you for all the great information you provide!” – BJ, Teacher
“Thank you for encouraging us daily and giving us the tools, your informative FB posts and amazing book, we need to learn how to advocate for our children. You give us hope for our children’s future.” -AS, Parent
Valerie Aprahamian is a special education advocate, IEP strategist, and speaker. She speaks on behalf of parents to protect the rights of neurodiverse children to receive the supports they need in public school.
