School Leader's Guide to Special Education, The. Margaret J. McLaughlin

to participate in and agree to all decisions regarding their child’s identification, evaluation, educational placement, and the provision of free appropriate public education

      • Opportunity to present complaints regarding any matter relating to the identification, evaluation, educational placement, or provision of free appropriate public education for their child. School districts must have procedures in place for parents to follow when filing a written due process complaint and include information on how to complete a hearing request form. According to IDEA regulations, the hearing request form must include the student’s name and address, the name of the school the student attends, a description of the complaint, and recommendations for a resolution to the problem (Seltzer, 1998). A parent’s due process hearing request must address alleged violations that occurred not more than two years before the date that the parent or school district knew or should have known about the issue leading to the request.

      • Written prior notice when parents and the school disagree on a course of action. This notice must include—

      

a detailed description and explanation of the course of action recommended or refused

      

a description of the evaluation procedures used to inform the decision about the recommended or refused course of action

      

a description of alternative options considered by the IEP team and explanation of why those options were deemed inappropriate for the student with a disability

      

a procedural safeguards statement identifying the rights of the parent(s) of the student with a disability as defined in IDEA

      

organizations for parents to contact to learn more about their rights and the rights of their student

      

any additional information that was considered by the school regarding the course of action in dispute

      • Opportunity for mediation. The outcomes of mediation are considered enforceable as a settlement agreement.

      • Opportunity to request a resolution meeting prior to presenting a complaint through a due process petition. Resolution meetings are considered less adversarial than due process hearings.

      Additionally, students have the right to a surrogate parent when parents are unknown or legally cannot participate. A surrogate parent cannot be employed by any agency educating or caring for the child, should possess the skills and knowledge needed to represent the student, and is selected in accordance with state law.

Due Process Under IDEA

      Procedural safeguards are grounded in the due process clause of the U.S. Constitution. Only a very small number of disputes that arise between parents and schools end up with parents filing a due process complaint. However, in the event that a parent should ever file such a petition, it is unlikely that a principal would manage this situation. The principal should notify the district special education administrator to make certain that all timelines and procedures are followed. It is not uncommon for parents to prevail in a hearing because the school did not follow specified procedures and timelines. For this reason, it is very important that principals know the procedures and timelines required by their districts and that they ensure compliance with these requirements.

      A due process complaint (also known as a due process request or due process petition) must allege that a violation occurred not more than two years before the date the parent or public agency knew or should have known about the alleged violation.

      Information required in a due process complaint includes the following:

      • Name of the child

      • Address of the residence of the child

      • Name of the school the child is attending

      • A description of the nature of the problem of the child relating to the proposed or refused initiation or change, including facts relating to the problem

      • A proposed resolution of the problem to the extent known and available to the party at the time (Assistance to States for the Education of Children With Disabilities, 2010e)

      If the parents and school district are unable to resolve the issue through an alternative dispute resolution process within thirty days of filing the request for a hearing, a forty-five-day due process hearing timeline begins. This means that a due process hearing must be held and a final decision issued within forty-five calendar days of the end of a resolution period. Either the parents or the school district has the right to appeal a final due process decision to state superior or federal district court within ninety days of the decision.

Alternative Dispute Resolutions

      IDEA includes provisions to help parties reach an agreement through mediation or a resolution meeting in hopes of avoiding a due process hearing. The 2004 amendments to IDEA added a resolution process that schools must adhere to after receipt of a due process complaint. Specifically, IDEA now states that within fifteen days of receiving a due process complaint, the school district is required to schedule a resolution meeting with the parents and selected IEP team members unless the parents and school district agree in writing to waive the meeting or agree to participate in mediation instead of a resolution meeting. School districts are not permitted to bring a lawyer to the resolution meeting unless the parents of the student with a disability bring a lawyer. It should be noted that while a resolution meeting is now required when a parent submits a due process complaint, if the complaint is initiated and filed by the school district, IDEA does not require a resolution meeting prior to a due process hearing.

      The purpose of the resolution meeting is for the school and parents to have an opportunity to meet, discuss the complaint, and resolve the problem without having to resort to a due process hearing. IDEA explicitly states that participants in the resolution meeting must include IEP team members who have information about the due process complaint and who were selected, in agreement, by the parents and the school or school district. Once the meeting is scheduled, if the parents do not attend, then the school has the right to ask the hearing officer to dismiss the due process complaint.

      IDEA also requires schools and school districts to develop and make available processes to provide mediation to parents as an alternative to a due process hearing. Mediation is voluntary and provided at no cost to the parents. Parents may opt for mediation instead of a resolution meeting if they prefer that the process be facilitated by an objective third-party individual. A mediator is assigned to each case by the state to guide effective communication between the parents and the school and assist them in the process of resolving the dispute by facilitating a mediation meeting. The state is required by IDEA to maintain a current list of qualified persons that can serve as mediators. Mediators must have expertise in IDEA’s statutes and regulations as well as individualized instruction, special education, and related services.

      The collaborative approach of mediation is intended to encourage parents and the school system to work together to seek solutions to the issues in the dispute. The purpose of mediation is to discuss the issues and explore the options in an attempt to resolve the dispute. The use of mediation reduces time and other resources spent in litigation. In both the resolution meeting and the mediation meeting, if a solution to the problem is agreed upon by the parents and the school, all participants are required to sign a legally binding document which states the problem and the agreed-upon solution.

      However, participation in the mediation process is optional; parents have the right to refuse mediation and can opt to move directly to a due process hearing. Furthermore, principals cannot use mediation to stall or delay a parent’s due process request. IDEA sets specific