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Special Education: When Parents and Schools Disagree

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Parents and schools work together as a team through the IEP Team process to make appropriate decisions about students with disabilities.  Sometimes, you and the school will disagree.  If you cannot work it out with the school, IDEA allows for 3 types of resolution procedures.

MEDIATION

Mediation can help you work out your differences and reach an agreement. A mediator listens to both sides and tries to help you and the school reach an agreement. You, the school, or (if your child is 18) your child can ask for mediation.  You do this by filling out a form and sending it to the Maine Department of Eduction (DOE).  You send a copy to the school.  

You or the school can ask for mediation all by itself. This is called "stand alone mediation." If a complaint or a due process hearing request is filed with the DOE, the DOE will first ask you and the school to try mediation.

After the DOE gets a request for mediation, it will assign a mediator to your case. It will also make sure that you and the school are both willing to go to mediation.  No one can force or order you or the school to try mediation.  It must be voluntary by both sides.  If  you and the school agree to have mediation, it will be held in a "timely manner" and at a mutually convenient place.

If you do not have a lawyer at mediation, the school cannot have a lawyer there either. If you do not have a lawyer, you can bring an "advocate" to mediation.  If  you have a lawyer for mediation, the lawyer must give the school and the DOE  written notice  that he or she will be at the mediation at least 7 calendar days before it is scheduled.

Everything that is said at mediation is confidential and cannot be used later. The only exceptions are:

  • an agreement you and the school make, or
  • any disclosures that a child was abused or neglected would require a report to child protection at Maine Department of Health and Human Services

If an agreement is reached at mediation, your case has settled.  No other action with the DOE will take place.  The agreement will be written down. You and someone with authority to agree for the school will sign the agreement.  It is a binding agreement that can be enforced in Court. You can also enforce the agreement by filing a complaint with the DOE.

To ask for mediation, fill out the DOE's Dispute Resolution Request Form. Check the box for "Stand Alone Mediation." If you have trouble downloading the form, you can ask for one by phone: (207) 624-6644. Send your completed form to the DOE and to the school. Be sure to keep a copy for yourself.  Learn more about Mediation.

COMPLAINT

A parent, adult student or "interested person" can file a complaint against a school if he believes the school has violated the parent's or child's rights under IDEA.

Examples:

  • The school did not act on a referral for special education identification
  • The school did not follow the IEP (Individualized Educational Program)

Generally, a complaint must be filed within 1 year of the violation. You can complain about an ongoing violation at any time. If you are asking for make-up services for your child ("comp ed"), you can file a complaint up to 2 years from the date the violation happened.

When the DOE gets the complaint, it will decide if an investigation is needed. If it is, the DOE will assign an impartial person to do an on-site investigation. The DOE has 60 calendar days from the time it gets the complaint to investigate and send out a written decision. The timeline may be longer if:

  • there are exceptional circumstances, or
  • the parties agree to more time because they are going to mediation

If you file a complaint and due process hearing request at the same time for the same problems, the complaint process will not start until after the due process hearing decision is made.

As part of the investigation,

  • the person who files the complaint can give more information to the investigator
  • the school has a chance to respond to the complaint and try to resolve it, and
  • mediation may be offered

After completing the investigation, the complaint investigator must make a written decision. It must have findings of fact, conclusions of law, and the reasons for the decision.

If there are violations, the DOE will order the school to take corrective action, such as:

  • provide appropriate services to address the needs of your child
  • reimburse you for services you paid for, and
  • make appropriate changes to ensure that all children with disabilities in the school receive services

If the DOE does not find any violations, no order against the school will be made.

To file a complaint, get a Dispute Resolution Request Form from the DOE and fill it out. Check the box for "Complaint Investigation." If you have documents you want the complaint investigator to read, attach them to the form. It will help the investigator if you attach supporting documents. You must give suggestions for how to fix the problem. Send everything to the DOE and a copy to the school. Keep a copy for yourself.

DUE PROCESS HEARING

Who Can Ask for a Hearing?

Parents and adult students can ask for a "due process hearing" if they disagree with:

  • the IEP Team's determination of the student's eligibility for services
  • the IEP (based on the appropriateness of services or least restrictive environment placement), or
  • the manifestation determination

The school must request a due process hearing if:

  • it wants to place your child in an IAES (Interim Alternative Education Setting) because it believes your child is a danger to self or others, or
  • it denies your request for an IEE (Independent Educational Evaluation)

The school can (but does not have to) file a request for due process hearing if you refuse to consent to evaluations of your child. The school can ask the hearing officer to order the evaluations.

The Timeline To Make a Request

A due process hearing request must be made within 2 years of when the parent or school knew or should have known about the disagreement.

There are 2 exceptions to this timeline:

  • the school lied and said it resolved the problem, or
  • the school withheld information from the parent that should have been given to the parent

Making a Request For a Due Process Hearing

To file a "due process hearing" request, get a hearing request form from the DOE and fill it out. Send your completed form to the DOE and send a copy to the school. Keep a copy of your request. If the school files a due process hearing request, it must send you a copy.

The request must be clear and must include:

  • the name and address of your child
  • if your child is homeless, the available contact information for your child
  • the name of the school your child attends
  • a description of the problem, including facts related to it, and
  • a proposed resolution

The hearing will only address the issues that are written in the request, so be sure to include all the issues in your request.

The other party can challenge the request for not being specific or for not having all the information it should have. The challenge must be in writing and sent to the hearing officer within 15 calendar days of receiving the request. The hearing officer must make her decision about the request within 5 calendar days of getting the challenge. If the hearing officer finds that the request is no good, a new notice can be filed if:

  1. the opposing party agrees and is given a chance to hold a "resolution meeting," or
  2. the hearing officer authorizes a new request

The new request must be received by the DOE and the other side at least 5 calendar days before the due process hearing. If the request is rewritten, all the timelines for the hearing will start after the new request is received.

Responding to the Request

If the school files a due process hearing request against you, you need to send a written response to the school within 10 calendar days of when you get the request.  Your response must address the issues the school raised.

If you file a due process hearing request, the school has 10 calendar days from when it gets the request to send you its written response. The response must state:

  • why it made the decision
  • the description of other options considered by the IEP Team
  • the reason for rejection of those options
  • descriptions of each evaluation, record, and report that supports the school’s decision, and
  • the factors relevant to school’s decision

The school does not have to send this response to you if it already sent you a prior notice that stated the proposed start of, change in, or refusal to start or change your child’s identification, evaluation, placement or FAPE (Free Appropriate Public Education).

Dispute Resolution Meeting

The school has 30 calendar days to resolve the problems you raised to your satisfaction. It does this by scheduling a dispute resolution meeting within 15 calendar days of getting a copy of your due process hearing request.  If you reach an agreement, the school must make sure that all the changes it agreed to do are completed within 30 calendar days of when it got your due process hearing request.  If the school does not make the changes it agreed to do at the dispute resolution meeting within 30 days of getting your request, the due process hearing timeline will start.

If you do not go to the dispute resolution meeting, the school can ask the hearing officer to dismiss your case. If the case is dismissed, the hearing will not happen.

If the school does not hold the meeting within the 15-day time period, you can ask the hearing officer to start the due process hearing timeline then, rather than wait the 30 days.

The resolution meeting does not need to happen if:

  • both you and the school agree in writing to not have the meeting, or
  • you and the school agree to go to mediation instead

The purpose of the resolution meeting is to give you and the school a chance to work things out. The people who should go to the meeting are:

  • you
  • IEP Team members with knowledge of the facts and issues, and
  • a school representative with decision-making authority

The school cannot have a lawyer at the meeting if you do not have a lawyer at the meeting.

If you and the school reach an agreement at the resolution meeting, it must be written down. Both you and someone from the school with authority to agree for the school must sign it. You or the school can change your minds within 3 business days of when the agreement is signed. After that, the agreement is legally binding. It can be enforced in Court.  You can also enforce the agreement by filing a complaint with the DOE.

The Due Process Hearing Timeline

The due process hearing timeline is 45 calendar days. The pre-hearing conference and hearing must be held within 30 calendar days. A written hearing decision must be made within 15 calendar days after the hearing is over. The 45-day timeline does not start until after the 30-day resolution period is over. It can start before that if:

  • the school does not hold the resolution meeting within 15 days
  • you and the school agree to not have a resolution meeting
  • you and the school agree in writing that an agreement is not possible, or
  • you and the school agreed to mediation after the 30-day "resolution period" and one of you then withdraws from mediation

Who Are the Hearing Officers?

Hearing officers cannot work for the DOE or for the school district that is involved in the case. They must be fair and neutral. They cannot have a personal or professional interest that could make them biased. The DOE and the schools keep a list of hearing officers and their qualifications.

Preparing for the Hearing

If you and the school do not reach agreement through a resolution meeting or mediation, there will be a hearing. The hearing officer will schedule a "pre-hearing conference" with you and the school. At the "pre-hearing conference" the hearing officer will define the issues and address witnesses, exhibits, and any other issues that need to be discussed.

You and/or the school can subpoena witnesses to the hearing.  The party who wants the subpoena must ask for one ahead of time from the Commissioner of the Maine Department of Education.  Any travel costs or fees charged by the witness must be paid for by the party asking for the subpoena.

The school and parent must exchange exhibits at least 5 business days before the hearing. Any documents that were not given to the other side at least 5 business days before the hearing cannot be used at the hearing.

The Hearing

A school district can have a lawyer for the pre-hearing conference and the earing even if you do not have a lawyer. You can bring someone with special knowledge or training about children with disabilities to the hearing.

The hearing officer will make opening remarks and review the issues to be decided. The person who asked for the hearing will give an opening statement, and then the other side will give its opening statement. The party requesting the hearing will go first by testifying under oath and putting on his witnesses. Each side will be able to cross-examine witnesses. Then the other party will present its testimony and witnesses. Rebuttal witnesses can be called. The hearing will be recorded by the hearing officer.

After all of the evidence has been presented, the parties give closing arguments by summarizing the evidence and regulations or laws that support their positions. The hearing officer may ask for written arguments. If she does, she will give you and the school a deadline to send her your written closing arguments.

The Hearing Decision

The hearing officer must make a decision within 15 calendar days after the hearing has ended. If written arguments were submitted, this means 15 days after she received them. The decision will be based on the evidence presented at the hearing.

If the school loses the hearing, it must comply with the decision within 45 calendar days or file a Court appeal.

The party who loses can appeal to federal Court or Maine Superior Court within 90 calendar days of receiving the decision. The appealing party must send a copy of the appeal to the DOE. An appeal to Court is not a new hearing. Instead, the Court will review the hearing decision for legal errors. A written transcript of your recorded hearing will be made for the Court to review on the appeal. A parent can request a transcript or recording of the hearing and cannot be charged a fee.

Your Child's Placement During the Dispute Process

As you see from the timelines, the process takes a while. While all this is going on, your child stays in his or her "current educational placement." This is the placement your child was in before any changes were made at the IEP team meeting. A different placement can happen if you and the school agree to another placement, or your child has been placed in an IAES (Interim Alternative Education Setting)for 45 school days.

Attorney's Fees

Only a Court can order the payment of attorney's fees.

If you win the due process hearing, the school can be ordered to pay your reasonable attorney's fees (if you were represented by a lawyer).  The fees are limited to the  lawyer's preparation for and representation at the hearing. It will not cover your lawyer's attendance at an IEP Team meeting unless the meeting was ordered by a Court or the DOE.  It will not pay for your lawyer's attendance at a "resolution session." Attorney's fees will not be ordered if:

  • the school makes a written offer of settlement at least 10 calendar days before the due process hearing
  • you do not accept the school's offer within 10 calendar days, and
  • the hearing or Court decision does not give you more than what the school offered

The school can ask for a hearing officer to order you to pay its attorney's fees ONLY IF you made the hearing request for an improper purpose (harassment, unnecessary delay, to increase cost of litigation).

Expedited Due Process Hearings

An expedited hearing can be asked for only if your child has been disciplined by and removed from the school. The hearing is the same as a due process hearing, except the timelines are slightly shorter. Instead of 30 calendar days to resolve the problem, the school has 15 calendar days. The "resolution session" must happen in 7 calendar days instead of 15 calendar days. If the issue is not resolved within 15 calendar days from when the school got the expedited due process hearing request, the hearing timeline is 30 school days. The hearing must be held within 20 school days after the resolution period has ended. The hearing officer must issue a decision within 10 school days after the hearing has ended. If you look at a calendar, you will see that this is not much quicker than the 45 calendar days it takes for a regular due process hearing.

In addition, an expedited hearing can be limited to one day. With a regular due process hearing, you are not limited to the number of days needed to present your case.

 

Updated: May 2013

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