Dispute Resolution Under the IDEA

David F. Bateman, PhD, is a professor at Shippensburg University in the Department of Educational Leadership and Special Education where he teaches courses on special education law, assessment, and facilitating inclusion. He is also a senior consultant at the American Institutes for Research. He is a former due process hearing officer for Pennsylvania where is was involved with 580 hearings. He uses his knowledge of litigation relating to special education to assist school districts in providing appropriate supports for students with disabilities. His latest area of research has been on the role of principals in special education. He has been a classroom teacher of students with learning disabilities, behavior disorders, intellectual disability, and hearing impairments, and a building administrator for summer programs. He has recently co-authored the following books: A Principal’s Guide to Special Education, A Teacher’s Guide to Special Education, Charting the Course: Special Education in Charter Schools, Current Trends and Legal Issues in Special Education, and Developing Educationally Meaningful and Legally Sound IEPs. Drs. Yell and Bateman are the editors of the Special Education Law, Policy, and Practice series published by Rowman & Littlefield.Mitchell L. Yell, PhD, is the Fred and Francis Lester Palmetto Chair in Teacher Education and a professor in special education at the University of South Carolina. His professional interests include special education law, IEP development, progress monitoring, and parent involvement in special education. Dr. Yell has published 136 journal articles, 6 textbooks, 36 book chapters, and has conducted numerous workshops on various aspects of special education law, classroom management, and progress monitoring. His textbook, Special Education and the Law, is in its 5th edition. He co-authored the text Developing Educationally Meaningful and Legally Sound IEPs. Dr. Bateman and Dr. Yell are the editors of the Special Education Law, Policy, and Practice series published by Rowman & Littlefield. In 2020, he was awarded the Researcher of the Year from the Council for Exceptional Children. Dr. Yell also serves as a State-level due process review officer (SRO) in South Carolina and is on the Board of Directors of the Council for Exceptional Children. Prior to working in higher education, Dr. Yell was a special education teacher in Minnesota for 12 years.Jonas S. Dorego, MEd, is a retired compliance officer for the Guam Department of Education. Ms. Dorego has worked as a compliance officer for the last 20 years managing the Guam Department of Education’s General Supervision System, including managing special education disputes. Her experience includes providing direct technical assistance to school teams on how to develop legally defensible IEPs, preparing school administrators on how to avoid special education disputes with parents, assisting the DOE on how to resolve disputes without going to hearing, preparing school teams to prepare for the actual hearing, and how to implement hearing outcomes.

With this book, Bateman, Yell, and Dorego offer a much-needed resource for a variety of stakeholders in which they address dispute resolution in a plain-language manner without watering down the essential knowledge and information of this topic. The authors treat the entire range of dispute resolution options, sharing their combined wealth of knowledge regarding multiple processes including the State Complaint Process, which is less often considered and discussed to the extent it is in this text. Readers will note that the information offered may help improve problem solving before litigation is required. They share their advice and strategies with a focus on better services and cooperation among professionals and parents—rather than adversarial processes which are so often the focus of texts. I believe the impact of this book will be a redirection of the collective efforts of stakeholders from time-consuming and costly dispute resolution processes to improved services and instruction for students with disabilities—where it should be.

• Acknowledgments Introduction 1 An Overview of the Individuals with Disabilities Education Act and Dispute Resolution Advance Organizers The Legal Development of Special Education The Courts and Special Education Pennsylvania Association for Retarded Citizens v. Pennsylvania (1972) Mills v. Board of Education (1972) Congress and Special Education Education for All Handicapped Children Act of 1975 (EAHCA) Primary Components of the IDEA Free Appropriate Public Education Evaluation Least Restrictive Environment Procedural Safeguards Textbox 1.1. Procedural Safeguards Textbox 1.2. Procedural Rights of Special Educations Students When Disciplined (IDEA Regulations, 34 C.F.R.§ 530 to 534) What Is the Dispute Resolution System of the IDEA? Conclusion References 2 Avoiding Dispute Resolution Advance Organizers The Critical Importance of a Good Parent–School Partnership Factors that Contribute to Establishing Meaningful Parent–School Partnerships in Special Education Communication Be Friendly Listen Be Clear Be Honest Provide and Coordinate Information Commitment Textbox 2.1. Important Elements of Prior Written Notice Equality Skills Table 2.1. Resources on Evidence-Based Practices Trust Respect Summary: Factors that Contribute to Establishing Meaningful Parent-School Partnerships in Special Education Factors that Contribute to Parent-School Conflicts in Special Education Strategy #1: Provide Training to Administrators and Teachers on Conflict Resolution Procedures Strategy #2: Recognize Situations that Lead to Parent-School Conflicts Discrepant View of a Child or a Child’s Needs Lack of Problem-Solving Knowledge Service Delivery Constraints on Resources Devaluation of the Parent–School Partnership Reciprocal Power Trust and Communication Summary: Factors that Contribute to Parent–School Conflicts in Special Education Alternative Dispute Resolution Mechanisms Strategy #1: Be Prepared for Possible Contentions IEP Meetings Strategy #2: Listen Carefully and Be Willing to Resolve the Dispute Strategy #3: Use an Ombudsperson Strategy #4: Use IEP Facilitation Summary: Alternative Dispute Resolution Mechanisms Conclusion References 3 State Complaints Advance Organizers Why Are States Required to Develop and Implement Complaint Procedures? What Is a State Complaint? Who May File a State Complaint? Textbox 3.1. What Should Be Included in a Complaint? The Advantages of Filing a State Complaint Tips on Completing a State Complaint Textbox 3.2. Tips for filing and Reacting to State Complaints Textbox 3.3. Possible Allegation in a State Complaint The SEA Complaint Resolution Process Textbox 3.4. Special Education Compliant Investigation Report—Complaint Decision Differences Between a State Complaint and a Due Process Hearing Conclusion References 4 Mediation Advance Organizers What Is Mediation? Textbox 4.1. Benefits of Mediation Mediation as a Process Textbox 4.2. Rules of Mediation Why Choose Mediation? Step One: The Beginning of a Mediation Session Step Two: The Specifics of the Issue Being Mediated Step Three: Conduct the Mediation Session Preparation for Mediation First: Focus on Purpose Second: Clarify the Issues Third: Develop an Index of Documents Fourth: Develop a Summary Fifth: State Your Issues Sixth: Plan Sufficient Time for the Process Seventh: Attendees at the Mediation Eighth: Review the Procedural Safeguards Ninth: Focus on Your Goals What Makes for an Effective Mediation? Mediation Agreements Conclusion Textbox 4.3. Sample Mediation Agreement References 5 The Resolution Meeting Advance Organizers Resolution Meetings Textbox 5.1. Timelines for the Resolution Meeting The Courts and Resolution Meeting Participants in the Resolution Meeting Reaching a Resolution Agreement Benefits of Resolution Meetings Preparing for a Resolution Meeting Textbox 5.2. Documents That Parents Should Bring to the Resolution Meeting Conclusion References 6 Settlement Agreements Advance Organizers The Purpose of a Settlement Agreement Settlement Agreements and Mediation Settlement Agreements and Resolution Meetings The Contents of a Settlement Agreement Enforcement of Settlement Agreements Conclusion References 7 Due Process Hearings Advance Organizers Due Process Hearings One-Tier and Two-Tier Due Process Hearing Systems What Is Meant by Special Education Due Process? The Qualifications and Independence of the Hearing Officer Textbox 7.1. Minimum Qualifications of Hearing Officers Procedural and Substantive Issues Who May Request a Due Process Hearing? Timeline of a Due Process Hearing Textbox 7.2. Due Process Timelines (IDEA Regulations, 34 C.F.R § 300.508 et seq.) Notice of a Due Process Hearing Sufficiency Challenge Amended Due Process Hearing Complaint Preliminary Meetings/Prehearing Due Process Hearing Conference Prehearing Subject Matter Disclosure of Exhibits, Witness List, and Introduction of Evidence Stay-Put Rule Due Process Hearing Basics Textbox 7.3. Due Process Rights (IDEA Regulations, 34 C.F.R § 300.512 et seq.) The Conduct of the Due Process Hearing The Burden of Proof in a Due Process Hearing Textbox 7.4. Example of the Flow of a Due Process Hearing Hearing Officers’ Ruling Civil Action Conclusion References 8 What to Expect in a Due Process Hearing Advance Organizers Before the Hearing Location The Actual Hearing Stipulations Opening Statements Presentation of Witnesses Sequestration Witness Offer Expert Testimony Exhibits Expedited Hearings Closing Statement Written Closing Statements Hearing Officer Ruling Appeal Implementing the Decision Conclusion 9 Expert Testimony Advance Organizers Ethical Considerations Expert Testimony and the Law What Is an Expert Witness? Conflicting Experts Special Education Expert Witness and the Supreme Court Position on Expert Witness Feed of the Council of Parent Attorneys and Advocates Textbox 9.1. COPPA Statement on Expert Witnesses Expert Witness v. Lay Witness Testifying as an Expert Witness Scheduling Issues Mutually Agreed Upon Experts Conclusion References 10 Witness Preparation for a Due Process Hearing Advance Organizers The Basics of Testimony Textbox 10.1. Testifying Direct Examination Cross-Examination Textbox 10.2. Testifying in Cross-Examination Preparing Witnesses for Testifying The Importance of Thorough Preparation The Process of Testifying What to Take to the Witness Seat? Making an ImpressionConclusion Reference 11 School District Preparation for Due Process Hearings Advance Organizers Prevention The Due Process Hearing Complaint Preparing for a Due Process Hearing Notifying and Interviewing Personnel Who May Be Involved in the Hearing Superintendent of the School District Attorney for the School District Insurance Carrier for the School District Principals, Teachers, and Others Who May Be Involved Gathering Relevant Documents Anecdotal Notes Emails and Correspondence After a Hearing Reviewing the Hearing Officer’s Order Addressing Staff Morale Addressing Inappropriate Actions by School Personnel Providing Staff Development Rebuilding Relationships with Parents Adjusting Policies and Procedures Conclusion References 12 Parent Preparation for a Due Process Hearing Advance Organizers Why Parents File Due Process Complaints Strategies for Improving Collaboration Strategy #2: Treat Others Respectfully Strategy #3: Meet Face-to-Face Strategy #4: Contact the Correct School District Personnel Strategy #5: Identify the Primary Issue Strategy #6: Do Your Research Strategy #7: Have Follow-Up Meetings Deciding to Request a Due Process Hearing Pre-Hearing Request Steps Step One: Identify the Issue Step Two: Consider the Outcome Step Three: Gather and Organize All of the Files Step Four: Review the Files Step Five: Organize Step Six: Table of Contents Step Seven: Review Your Documents Deciding on Hiring an Attorney Choosing an Attorney Pro Se Representation Positive Aspects of Proceeding Pro Se Negative Aspects of Proceeding Pro Se Additional Advice for Parents Textbox 12.1. Resources for Parents Filing a Due Process Complaint Textbox 12.2. Contents of the Complaint (IDEA Regulation, 34 C.F.R. § 300.508[b]) Consider Settling the Dispute Participating in a Due Process Hearing Conclusion References 13 How to Read a Due Process Hearing Decision Advance Organizers What Is a Decision? How to Read a Decision Part One: Cover Page Textbox 13.1. A list of items that may be included on the cover page Part Two: Executive Summary Part Three: The Issues in the CasePart Four: The Facts of the Case Part Five: Discussion and Conclusion of Law Part Six: The Hearing Officer’s OrderWhat Happens After the Decision? Conclusion 14 After a Due Process Hearing Advance Organizers The Relief that a Hearing Officer May Order Table 14.1. Relief that Courts May Order Appealing a Due Process Hearing Decision Should There Be an Appeal? Appealing a Hearing Officer’s Decision The Appeals Process Information in an Appeal of a Hearing Appellate Briefs The Transcript of the Due Process Hearing After Appealing a Court Decision Learning from a Due Process Hearing or State Complaint Plane v. Car Crash Analogy Opportunities to Learn from Due Process Hearings and State Complaints Textbox 14.1. Additional Questions RegardingChanges to Consider Expenses to Be Weighed Conclusions References Appendix A Appendix B Appendix C Appendix D Appendix E References Index About the Authors