Individuals with
Disabilities Act
40 USC §1400 et. seq.
General Overview – Dispute
Resolution Process
Module One
Where you can find the law?
Individuals with Disabilities Education Act (IDEA)
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Statute: 20 U.S.C. §1400 et. seq.
Regulations: 34 C.F.R. Part 300
Supreme Court Cases
10th Circuit
State and Federal District Courts
What law relates to the IDEA?
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Section 504 of the Rehabilitation Act of 1973
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No Child Left Behind Act of 2001
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Family Educational Rights and Privacy Act
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McKinney-Vento Homeless Assistance Act
Statute
20 U.S.C §1400 et. seq.
Act divided into five parts:
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1. Part A – General Provisions
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1400 – Findings and Purposes
1401 - Definitions
2. Part B – Ages 3-21
3. Part C – Birth to 3 (Sooner Start)
4. Part D – National Activities to Improve
Education of Children with Disabilities
5. Part E – National Center for Special Education
Research
IDEA - Part B
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When a state accepts federal financial aid, each
LEA must make available FAPE in the LRE to
qualifying disabled children.
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Who is an LEA?
Who qualifies as a disabled child under the IDEA?
What is FAPE?
How is FAPE determined?
How is FAPE provided?
What is the LRE?
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IDEA – Part B
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An LEA is the local educational agency.
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Who qualifies as a child with a disability under the IDEA?
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A child with mental retardation, hearing impairments, speech or language impairments, visual impairments, emotional
disturbance, orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities
and who, by reason thereof, needs special education and related services.
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FAPE is a Free and Appropriate Public Education.
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FAPE determined by statute, regulation and case law.
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20 USC1401 (9)
34 CFR 300.101, 300.17
Board of Education v. Rowley, 458 U.S. 176 (1982).
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FAPE is provided in accordance with the IEP.
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Schools are required to educate children with disabilities with children who are not disabled to
the maximum extent appropriate. A child may only be removed from the regular setting if the
nature or severity of the disability is such that the child cannot be educated in regular classes,
even with the use of supplementary aids and services. 20 USC§1412.
Disputes - Examples
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Identification –child find
Evaluation – eligibility, determine individual
needs to formulate the IEP, evaluation tools,
qualification of tester, IEE
Educational Placement – LRE, continuum of
service
Provision of FAPE – failure to provide IEP
services; development of the IEP, failure to
follow the law (discipline).
Avenues of Dispute Resolution
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Opportunity for Mediation over dispute between parent / school
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Informal Complaint to the SDE
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Formal Complaint to the SD
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Opportunity for Mediation
Formal Complaint to the LEA
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Opportunity for Mediation
Opportunity for Mediation
Due Process Complaint Notice
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Opportunity for Mediation
Mandatory 30 day Resolution Time Period
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Resolution Session
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Convened within 15 days
Unless waived by both parties in writing
Attended by persons who are chosen by the parties – who have facts about the DP notice.
To discuss issues of the DP notice
Any agreement drafted in a legally enforceable Resolution Agreement.
Resolution Session
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States must maintain or increase the number of
resolution agreements coming out of resolution
sessions.
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We can bring the proverbial horses to water – but
how do you get them to drink?
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Innovative Programs – Third-party Neutral
Facilitators!
Will you be the rock that
redirects the course of
the river?
-- Claire Nuer.
Due Process
34 CFR §300.507-10
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Parent or Public Agency may file on any issue related to:
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Identification
Evaluation
Educational Placement
Provision of FAPE
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Complaint must allege a violation that occurred no more than 2 years before filer knew or
should have known about the problem.
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Deemed sufficient unless the receiving party objects to sufficiency within 15 days of
receiving complaint. (File an objection) HO decides within 5 days. May give party the
opportunity to amend.
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Content:
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Name of child
Address of the residence
Name of the school or contact info if child is homeless
Description of the nature of the problem, including facts
Proposed resolution to the extent known
Due Process Timelines
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First 30 days are a mandatory resolution time period
(may be shortened)
If a party amends the complaint, 30 day time period
starts all over again!
After the 30 days, or other qualifying event, the due
process complaint notice springs to life.
Once live, the due process must be heard and a
decision rendered within 45 days, unless properly
extended by the parties.
What happens in the first 30
days of Due Process?
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ALOT! Parties are often confused by all the
activity.
SERC assigns the case to an impartial officer.
SERC asks if the parties want a neutral facilitator for
the RS.
Within 7 days, Officer contacts parties to arrange a
pre-hearing conference (scheduling)
Within 10 days, School district must file an response
to each and every allegation.
Within 15 days, parties must schedule a resolution
session. Parties may waive the RS, in writing, or opt
for mediation.
Due Process Filed
Day 1
SERC sets case for hearing and assigns HO
Within 3-4 days
SERC contacts parties to inquire if the parties
desire a 3rd party neutral facilitator
Contact within 7 days
HO contacts the parties set up a pre-hearing
(scheduling conference)
Contact within 7 days
School must respond to the DPH Complaint
Notice
By the 10th day
School must schedule a resolution session
(parties may opt for mediation or waive the
meeting in writing)
By the 15th day
Resolution session / mediation
As the parties can meet.
HO conducts 2nd pre-hearing conference
(prepare for hearing)
Date determined in 1st conference, towards the end of the 30
days time period.
Resolution Time (30
days)
Hearing Time (45
days)
Begins at:
* End of 30 day resolution time.
* Immediately, if both parties waive the
resolution session in writing.
* Immediately, if both parties agree in writing
that no agreement is possible, after mediation or
resolution session.
* Immediately, if both parties agree in writing to
continue mediation within the 30 day resolution
period, but later one party withdraws from the
process.
Hearing
Decision
Due within 20 days of submission by the last party or as
agreed by the parties.
Resolution Sessions
34 CFR 300.510
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Within 15 days of receiving complaint, the LEA must
convene a resolution meeting.
Who must attend?
 Parents
 Relevant members of the IEP team who have specific knowledge
of the facts identified in the complaint.
 LEA must include a representative that has decision making
authority on behalf of the agency
 LEA may not bring an attorney if the parent does not bring an
attorney.
What is the purpose of the meeting?
 To discuss the due process complaint and the facts that form the
basis of the complaint – so the LEA has opportunity to resolve
the dispute.
RS not required when parties waive or opt out to mediation
Individuals with Disabilities Education Act
Expedited - Due Process Time Chart
Due Process Filed
Begins on the day of filing –
with the resolution time period
contained within the hearing
time.
SERC sets case for hearing and
assigns HO
ASAP
SERC contacts parties to inquire
if the parties desire a 3rd party
neutral facilitator
ASAP
HO contacts the parties set up a
pre-hearing (scheduling
conference and to prepare for
hearing)
ASAP after assignment
Hearing Time (30 days)
No extensions
Resolution Time (15 days
within the 30 day hearing
time)
Expedited
34 CFR §§300.530 -300531
No response or sufficiency
objection is required.
School must schedule a
resolution session (parties may
opt for mediation or waive the
meeting in writing)
By the 7th day
Resolution session / mediation
By the 7th day
Hearing
Occurs within 20 school days
from filing.
Decision
Due within 10 school days of the
hearing.
If issue is not resolved:
Resolution Sessions
34 CFR 300.510
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If the LEA has not resolved the issue to the
satisfaction of the parent, they go to hearing.
What happens if a party refuses to participate
in RS?
What happens if parties agree on a
resolution?
What adjustments can occur in the 30 day
resolution period?
What Is Expected of the Facilitator
for Resolution Sessions?
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Promptly contact the parties after assignment
of a case.
Work with the parties to arrange the RS as
quickly as possible.
Seek assistance of SERC if any issues arise
(example: scheduling, technical assistance).
I suppose leadership at one time meant muscles…
…today it means getting along with people.
--Indira Gandhi.
Resolution Sessions
34 CFR 300.510
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If the LEA has not resolved the issue to the satisfaction of the parent, they go to
hearing.
What happens if a party refuses to participate in RS?
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What happens if parties agree on a resolution?
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Except where the parties have jointly agreed to waive the resolution period, failure of
parent to participate in the resolution meeting will delays the timelines for the resolution
process and the hearing until the meeting is held.
If parent refuses, School may ask that DPH be canceled.
If school refuses, the parent may ask to proceed to hearing.
Resolution Agreement.
What adjustments can occur in the 30 day resolution period?
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The hearing timeline (45 days) starts the day after one of the following events:
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Both parties waive the resolution session in writing.
After mediation or resolution session, both parties agree in writing that no agreement is possible.
Both parties agree in writing to continue mediation at the end of the 30 day resolution period, but
later one party withdraws from the mediation process.
Resolution Agreement
34 CFR §300.510(d)
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If a resolution to the dispute is reached at the
resolution meeting, the parties must execute
a legally binding agreement that is:
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Signed by both the parent and a representative of
the agency who has authority to bind the district;
and
Enforceable in any state court or competent
jurisdiction or in a district court of the United
States.
Discussion
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What if parties agree to some issues but not
all?
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Resolution Agreement is written to all issues resolved.
Remaining issues move to hearing.
Sample Resolution Agreement
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Sample Agreement is a suggested format.
Important to contain closing provisions that
explain to a pro se parent/ school some of the
requirements.
Experience suggests that a great deal of time
is spent on crafting the specific agreement.
Center maintains a computer and printer if
the facilitator needs to check it out.