This article will focus on due process hearings, which are the most costly form of dispute resolution in terms of time, financial resources, and impact on relationships between parents and school personnel.
BY WILLIAM BLACKWELL, ED.D.
Planning special education services is a collaborative process involving parents, children, and school personnel. While the majority of individualized education programs (IEPs) are developed collaboratively, there are situations in which disagreements arise that are not easily resolved. Parents are sometimes left asking themselves, “Where do we go from here?” following an unsuccessful attempt at resolving differences with school personnel. Our federal special education law, the Individuals with Disabilities Education Improvement Act (IDEA), provides parents and schools with options for resolving these disagreements. However, these options can be costly and often increase the levels of stress experienced by parents.
This article will provide parents with important issues to consider when navigating disagreements with schools over special education services. It is intended to assist parents in making informed decisions regarding special education dispute resolution. Specifically, the article will focus on due process hearings, which are the most costly form of dispute resolution in terms of time, financial resources, and impact on relationships between parents and school personnel. It will describe the dispute resolution procedures outlined in federal law and highlight research on the outcomes of special education due process hearings. The article will then provide parents with four options for engaging in less costly and adversarial dispute resolution. Finally, it will list four key considerations that parents should make if they decide to go forward with a due process hearing.
SPECIAL EDUCATION DISPUTE RESOLUTION
During special education planning meetings, there are instances in which parents will disagree with the school over parts of their child’s IEP. When this happens, the disagreements are typically resolved at the local level. The IEP team may decide to meet again in a few days in order to allow both sides to consider their options and develop a mutually agreeable solution. The parent may choose to enlist the help of a special education advocate to provide recommendations and communicate with school personnel. Or the school district may assign an administrator to help resolve the conflict by working with both parents and teachers to determine the best for the child.
However, there are instances in which the conflict cannot be resolved locally. Federal special education law provides two options for navigating these types of disputes. The first option is mediation. During mediation, the state education agency assigns an impartial mediator to meet with parents and school personnel, listen to the issues, and make recommendations for a solution to the disagreement. If both sides come to a mutually agreeable decision, a legally binding written document is developed that details the results of the mediation. States are required to maintain a list of qualified mediators and to provide these services at no cost to parents.
When mediation is not successful, the next option is called an impartial due process hearing. These hearings are formal processes that often involve attorneys. Due process hearings include review of evidence, written and oral testimony, cross-examination of witnesses, and a final decision ordered by a hearing officer. Researchers Lynn Daggett and Tracy Mueller have estimated that the average cost of a due process hearing is over $10,000. Parents may be responsible for many of these costs, particularly if they use an attorney and do not win most of the issues decided in the hearing.
RESEARCH ON DUE PROCESS HEARINGS
When I first experienced a due process hearing, I was taken aback by the atmosphere. It felt like I was in a legal drama on television. The school district had three attorneys, the parents had their attorney, and witnesses were called to testify and were even cross-examined by the lawyers. The final decision was read and then made available in a 40-page document that included every detail of the case. Throughout the process, I had the impression that the school district had a distinct advantage. Their attorneys were experienced and the school personnel involved in the hearing had been through this process in the past. On the other hand, the parents seemed overwhelmed at times and were clearly experiencing high levels of stress and anxiety. The end result was not favorable for the parents or their child.
Drawing from this experience, I researched the outcomes of due process hearings in Massachusetts (where I lived at the time) over an eight-year period from 2006-2013. In the 258 hearing decisions that I analyzed, the school district won over 55% and parents won only 21% of the hearings. The other 24% of hearings resulted in a “mixed decision” that involved both sides winning at least some portion of the hearing. Based on these results, it appears that school districts benefit from their expertise and experience when participating in due process hearings.
Even more striking were the results related to attorney representation. School districts used attorneys in 100% of the 258 due process hearings. On the other hand, parents only used attorneys in 40% of the hearings. They used a special education advocate in 15% of the hearings and represented themselves in the other 45% of the hearings. This importance of attorney representation was evident when I analyzed the results by type of representation. Parents who used an attorney won 31% of their hearings. Parents who used a special education advocate won 21% of their hearings. The parents who represented themselves were only able to prevail in 10% of their hearings. It is clear from these results that being able to access legal representation is a major factor in the results of special education due process.
OPTIONS FOR ENGAGING IN LESS COSTLY AND ADVERSARIAL DISPUTE RESOLUTION
Although it was not the intention of our federal special education law, the due process hearing option does not work in favor of parents who are in conflict with their child’s school. And even though school districts win the majority of the decisions, both administrators and teachers acknowledge that due process is a difficult, costly, and undesirable method for resolving disagreements over special education services. Here are four options that parents can use to engage in less costly and adversarial dispute resolution.
1. Enlist the support of a special education advocate: Special education advocates are experienced, trained individuals with direct knowledge and expertise in both special education and parent advocacy. Special education disputes can be stressful and emotionally draining on parents. Advocates can help relieve these pressures by communicating with school personnel, organizing documentation, asking questions at meetings, and recommending possible solutions to the conflicts. School districts often have parent resource liaisons who can recommend advocates in your area. Another option is to contact special education faculty at your nearest university to see if they engage in advocacy work. Many advocates work on a volunteer or low-cost basis.
2. Consult with your regional Parent Training and Information Center: The U.S. Department of Education funds these parent support centers throughout the country. Their mission is to provide consultation, training, and support to parents of children with disabilities. Many of the centers offer free consultation and can direct parents to local resources such as special education advocates and parent support groups. Parents can find their Parent Training and Information Center by visiting the Center for Parent Information and Resources website at www.parentcenterhub.org/find-your-center/.
3. Request a facilitated IEP meeting: The facilitated IEP meeting is growing in popularity and effectiveness as an option for resolving special education disputes. In most IEP meetings, the special education case manager organizes the agenda and manages the discussion. In situations in which there is conflict, this approach often increases the level of disagreement. Facilitated IEP meetings are run by an independent, trained facilitator who does not work for either the school or the parents. The facilitator is responsible for ensuring that both sides can express their opinions and for helping them resolve their differences. Many states now offer IEP facilitators at no costs to parents and schools. Parents may contact their state education agency to see if these services are available.
4. Participate in special education mediation: As mentioned previously, federal special education law requires states to provide free, impartial mediators to help parents and school personnel resolve disagreements. While facilitated IEP meetings focus on the entire planning process, mediation targets the main areas of disagreement. A trained mediator meets with both sides to understand the issues and make recommendations. Typically, mediators help parents and school personnel find a common ground. Any agreement reached during mediation is legally binding. States are required to maintain a list of qualified mediators and to provide these services at no cost to parents. Both parents and the school district can contact the state education agency to request mediation services.
KEY CONSIDERATIONS IF GOING FORWARD WITH A DUE PROCESS HEARING
If the strategies described above are not effective, an impartial due process hearing is the next option for resolving disagreements about special education services. This process will be costly in terms of money, time, stress, and relationships. However, it is sometimes necessary in order to ensure that a child receives quality special education services as required by federal law. Here are four key considerations that parents should make if they decide to go forward with a due process hearing.
1. Organize all documentation: There is a considerable “paper trail” that has developed by the time a disagreement has reached the point of going to a due process hearing. This “paper trail” is an essential part of the hearing. Documentation, notes, communication logs, and other forms of written information will be used as evidence at the hearing. The documentation will also be made available to both sides in the dispute, including attorneys and school personnel. Parents will benefit from organizing the documentation into folders and creating a list of the contents. If the parent is using an attorney, this step will save both time and money in legal costs.
2. Meet with a special education advocate: Even if the parents do not choose to use advocacy supports in the due process hearing, it is still beneficial to meet with an advocate during the early stages of the process. A special education advocate can explain the process and the parents’ rights, assist in organizing documentation, and can help to file the request for a due process hearing with the state education agency. Advocates also provide a level of emotional support during the process. Due process hearings are stressful, drawn out proceedings that take a toll on parents and their child. A skilled advocate will provide coaching, encouragement, and support throughout the process.
3. Consult with an attorney: As discussed previously, parents win a higher percentage of due process hearings when they are represented by an attorney. However, legal representation often comes at a steep financial cost. In the early stages of the process, it may be worth the money to consult with an attorney that is knowledgeable about special education law. The initial consultation is often provided at a reduced rate. For parents experiencing financial hardship, law firms and non-profit legal advocacy groups may provide attorney representation at reduced cost. Parents may contact local law firms, ask special education advocates to recommend attorneys who specialize in special education law, or may contact their regional Parent Training and Information Center (www.parentcenterhub.org/find-your-center/) for information on special education attorneys.
4. Take advantage of the resolution session: Federal special education law provides parents and schools with the option for a resolution session prior to the due process hearing. This meeting is essentially a last attempt to resolve the dispute before proceeding to the hearing. It is important for parents to know that the school district may not include an attorney at the resolution session unless the parent also has legal representation. If the two sides do not feel that a resolution session will be productive, they are encouraged to reconsider using mediation to resolve the differences. In the event that the resolution session is not effective, then the final step in the process is to proceed with the due process hearing.
Although most individualized education programs (IEPs) are developed collaboratively, there are situations in which disagreements arise that are not easily resolved. The dispute resolution options outlined in federal law can be costly and often increase the levels of stress experienced by parents. When navigating this difficult territory, parents can benefit from being familiar with the research on due process hearings, considering other options for engaging in less costly and adversarial dispute resolution, and taking specific steps if they decide to go forward with a due process hearing. Hopefully this article will assist parents in making informed decisions regarding special education dispute resolution.
ABOUT THE AUTHOR:
Dr. William Blackwell is an assistant professor of special education at Sam Houston State University in Huntsville, TX. His work focuses on special education dispute resolution and school choice policies for children with disabilities.
Blackwell, W., & Blackwell, V. (2015). A Longitudinal Study of Special Education Due Process Hearings: Issues, Representation, and Student Characteristics. SAGE Open, 5, 1-11.
Daggett, L. M. (2004). Special Education Attorney’s Fees: of Buckhannon, the IDEA Reauthorization Bills, and the IDEA as Civil Rights Statute. UC Davis Journal of Juvenile Law & Policy, 8(1), 1-53.
Individuals with Disabilities Education Improvement Act, 20 U.S.C. § 1400 et seq. (2004).
Mueller, T. G. (2009). Alternate Dispute Resolution: A New Agenda for Special Education Policy. Journal of Disability Policy Studies, 20(1), 4-13.
Center for Parent Information and Resources. http://www.parentcenterhub.org/
Wright, P., & Wright, P. (2006). From Emotions to Advocacy: The Special Education Survival Guide (2nd edition). Hartfield, VA: Harbor House Law Press, Inc
Exceptional Parent Magazine; September 2017