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SPECIAL EDUCATION DISPUTES

By Laura A. Athens

Mediation of Special Education Disputes

In the 1997 amendments to the Individuals with Disabilities Education Act (IDEA), Congress specifically endorses and encourages the use of mediation to resolve special education disputes. Prior to the 1997 amendments, the federal statute and its regulations did not address mediation. The only mention of mediation was contained in a note to a federal regulation, which acknowledged that although mediation was not required by the statute or regulations, many states have found mediation to be successful and educational agencies may wish to consider suggesting mediation as a method of resolving conflicts regarding the provision of special education and related services.

General Provisions of IDEA

IDEA sets forth certain substantive and procedural rights for children with disabilities and their parents. It mandates that children with disabilities from three to twenty one years old be provided with a "free and appropriate public education," which includes "special education and related services designed to meet their unique needs and prepare them for employment and independent living." Children with disabilities are entitled to not only specially designed instruction, but also related services such as speech, physical and occupational therapy, transportation, audiology, rehabilitation counseling, social work and psychological services. Older children are entitled to a consideration of vocational education needs and transition services designed to promote the student's progression from school to adult education, vocational training, employment, and independent living.

IDEA provides a wide range of procedural protections for children with disabilities and their parents. A child with a disability is entitled to timely and comprehensive evaluation, an annual individualized educational program (IEP) meeting during which the parents, school personnel, other interested persons, and the child, if appropriate, meet to establish educational goals and objectives, and to determine the appropriate educational program and services. The IEP report, a written plan documenting the educational program and services for the child, must be reviewed and updated annually. Every three years, the child is entitled to a comprehensive revaluation of his or her disability by a multi-disciplinary evaluation team.

Other procedural safeguards include the parent's right to be notified of any change in the child's placement, to examine educational records, to obtain an independent educational evaluation at the expense of the educational agency, and to present disputes at "an impartial due process hearing." After administrative review, "any party aggrieved by the findings and decision" rendered in the administrative proceedings has a right to bring a civil action in state or federal court.

Mediation Under the IDEA Amendments

To receive federal funding under the 1997 IDEA amendments, state and local educational agencies must make mediation available as a means of dispute resolution, at a minimum, whenever a due process hearing is requested. Procedures must be developed to ensure that mediation is "voluntary," and is not used to deny or delay access to an administrative due process hearing. According to the IDEA amendments, the state or local educational agency may establish procedures requiring parents who choose not to participate in mediation to meet with a disinterested party to encourage the use and explain the benefits of mediation. Curiously, there is no parallel provision for education of school personnel about the advantages of mediation. In this author's experience, it is usually the school personnel, rather than the parents, who are reluctant to engage in mediation.

Under the amendments, mediation must be conducted by a "qualified and impartial mediator." The state is required to maintain a list of qualified mediators and bear the cost of mediation. Any agreement reached must be set forth in a written mediation agreement. If the parties fail to reach an agreement, any information shared during the course of mediation must be kept confidential and cannot be used as evidence in any subsequent administrative or civil proceeding.

Although the IDEA amendments mandate that mediation be available whenever a request for due process is made, mediation is an effective tool that can be used anytime a dispute arises between the parties. Early use of mediation can often prevent disagreements from escalating to the point that a due process hearing is necessary.

Disputes may arise concerning eligibility for special education, evaluation procedures, educational placement, provision of related services or transition services, as well as behavioral and disciplinary issues. The IDEA amendments contain a new requirement that a parent requesting due process provide the school with notice describing the nature of the problem, including relevant facts, and a proposed resolution to the extent that a resolution is known. Although this provision places an additional burden on the parent, it helps to focus the issues and provides an initial framework for discussion.

Advantages of Special Education Mediation

Mediation is particularly beneficial in the special education arena because it permits the parties who know the child to work cooperatively in identifying the issues and generating a variety of options. Mediation encourages a free exchange of information and creativity. Innovative solutions are often reached in mediation that would have never even been considered in an IEP meeting or at a due process hearing.

At a typical IEP meeting, parents are surrounded by a table full of school professionals who speak in confusing jargon and are busy filling out a mound of paperwork. The superintendent's designee, often an administrator, is in charge of the meeting. The meeting progresses in a predetermined order as the blanks on the IEP form are filled in. The outcome, in terms of the educational placement and services for the child, is often preordained. School personnel possess the knowledge and expertise regarding the system and control access to the resources. Although the parents are "experts" on their own children and entitled to be treated as "equal participants" in the process, this rarely occurs. In many instances, the parents have no opportunity to review psychological and other evaluation reports prior to the IEP meeting. The terminology on the evaluations and IEP forms is often foreign to them. Until recently, the only notice of procedural and substantive rights that parents received was buried in fine print on the back of IEP forms. Parents, who are unfamiliar with the system, often are overwhelmed and intimidated by the process. Mediation evens the playing field. It gives the parties an opportunity to express interests and concerns directly to each other free from the constraints of an IEP meeting. School personnel are no longer burdened by a mound of forms. Parents are no longer passive participants, but take an active role in the negotiation process, participating in the development and design of the educational program. Mediation fosters communication, cooperation, and joint problem solving. Together the parties identify options and solutions that neither would have contemplated alone. When the parents' experience and familiarity with the child is joined with the school personnel's professional expertise and knowledge of educational resources individualized and innovative programming results.

In most instances, mediation is more economical in terms of time and money. Typically, a special education mediation lasts one day or less. After mediation, the parties can refocus their energies and efforts on the child rather than litigation. Teachers and other school district staff can return to providing educational intervention and related services. Parents can concentrate on providing for the child's basic needs and supporting his or her education. Special education due process hearings typically last three to five days. Under the IDEA regulations and Michigan Revised Administrative Rules for Special Education, the total number of days between a request for a due process hearing until the final decision by the hearing officer is not to exceed forty five (45) calendar days. However, according to statistics concerning special education hearings in Michigan, the average number of days from a request for a hearing until a written decision by the hearing officer has been over two hundred days since the 1994-95 school year.

After the due process hearing, either party has the right to appeal to the Michigan Department of Education. After exhausting administrative remedies, they may file a civil action in federal court. The delays encountered and costs incurred can be extraordinary for both parties and in the interim the child's fate is held in limbo. Under a provision of IDEA known as "stay put", the child does have a right to remain in his or her current educational placement during the pendency of proceedings, however, this may work for or against either party depending on the nature of the dispute. Ultimately, neither party may be satisfied with the result imposed by a hearing officer or judge.

Mediation offers the school personnel and parents an opportunity to fashion their own unique resolution taking into account the needs and concerns of both parties. When the parties are actively involved in formulating their own mediated agreement, they tend to be more invested in the result and less likely to pursue future litigation on the same issues. Mediation is particularly appropriate in special education disputes because the parties ordinarily will have a continuing relationship, and share a common goal of promoting the educational development of the child even though they may not agree on how to achieve that result. Because the mediation process facilitates communication and cooperation, it preserves the relationship by building trust and rapport, and teaches fundamental negotiation skills that can be utilized in the future. Innovative, enduring and mutually satisfying results are more likely to occur as a result of the mediation process.

Posted on Saturday, February 24, 2007 at 01:10PM by Registered CommenterSite Administrator in | Comments Off

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