Dispute Resolution Under the IDEA

Mitchell L. Yell, PhD, is the Fred and Francis Lester Palmetto Chair in Teacher Education and a Professor in Special Education at the University of South Carolina. His professional interests include special education law, IEP development, progress monitoring, and parent involvement in special education. Dr. Yell has published 136 journal articles, 6 textbooks, 36 book chapters, and has conducted numerous workshops on various aspects of special education law, classroom management, and progress monitoring. His textbook, Special Education and the Law, is in its 5th edition. He co-authored the text Developing Educationally Meaningful and Legally Sound IEPs. Dr. Bateman and Dr. Yell are the editors of the Special Education Law, Policy, and Practice series published by Rowman & Littlefield. In 2020, he was awarded the Researcher of the Year from the Council for Exceptional Children. Dr. Yell also serves as a State-level due process review officer (SRO) in South Carolina and is on the Board of Directors of the Council for Exceptional Children. Prior to working in higher education, Dr. Yell was a special education teacher in Minnesota for 12 years. David F. Bateman, PhD, is a professor at Shippensburg University in the Department of Educational Leadership and Special Education where he teaches courses on special education law, assessment, and facilitating inclusion. He is also a senior consultant at the American Institutes for Research. He is a former due process hearing officer for Pennsylvania where is was involved with 580 hearings. He uses his knowledge of litigation relating to special education to assist school districts in providing appropriate supports for students with disabilities. His latest area of research has been on the role of principals in special education. He has been a classroom teacher of students with learning disabilities, behavior disorders, intellectual disability, and hearing impairments, and a building administrator for summer programs. He has recently co-authored the following books: A Principal’s Guide to Special Education, A Teacher’s Guide to Special Education, Charting the Course: Special Education in Charter Schools, Current Trends and Legal Issues in Special Education, and Developing Educationally Meaningful and Legally Sound IEPs. Drs. Yell and Bateman are the editors of the Special Education Law, Policy, and Practice series published by Rowman & Littlefield. Jonas Dorego, Med, is a retired Compliance Officer for the Guam Department of Education. Ms. Dorego has worked as a compliance officer for the last 20 years managing the Guam Department of Education’s General Supervision System, including managing special education disputes. Her experience includes providing direct technical assistance to school teams on how to develop legally defensible IEPs, preparing school administrators on how to avoid special education disputes with parents, assisting the DOE on how to resolve disputes without going to hearing, preparing school teams to prepare for the actual hearing, and how to implement hearing outcomes.

Introduction

Chapter 1: An Overview of the Individuals with Disabilities Education Act and Dispute Resolution

Advance Organizers

The Legal Development of Special Education

The Courts and Special Education



Pennsylvania Association for Retarded Citizens v. Pennsylvania (1972)
Mills v. Board of Education (1972)

Congress and Special Education



Education for All Handicapped Children Act of 1975 (EAHCA)

Primary Components of the IDEA



Free Appropriate Public Education
Evaluation
Least Restrictive Environment
Procedural Safeguards

What is the Dispute Resolution System of the IDEA?

Conclusion

References

Chapter 2: Avoiding Dispute Resolution

Advance Organizers

The Critical Importance of a Good Parent-School Partnership

Factors that Contribute to Establishing Meaningful Parent-School Partnerships in Special Education

Communication



Be Friendly
Listen
Be Clear
Be Honest
Provide and Coordinate Information

Commitment

Equality

Skills

Trust

Respect

Summary: Factors that Contribute to Establishing Meaningful Parent-School Partnerships in Special Education

Factors that Contribute to Parent-School Conflicts in Special Education

Strategy #1: Provide Training to Administrators and Teachers on Conflict Resolution Procedures

Strategy #2: Recognize Situations that Lead to Parent-School Conflicts



Discrepant View of a Child or a Child’s Needs
Lack of Problem-Solving Knowledge
Service Delivery
Constraints on Resources
Devaluation of the Parent-School Partnership
Reciprocal Power
Trust and Communication

Summary: Factors that Contribute to Parent-School Conflicts in Special Education

Alternative Dispute Resolution Mechanisms

Strategy #1: Be Prepared for Possible Contentions IEP Meetings

Strategy #2: Listen Carefully and Be Willing to Resolve the Dispute

Strategy #3: Use an Ombudsperson

Strategy #4: Use IEP Facilitation

Summary: Alternative Dispute Resolution Mechanisms

Conclusion

References

Chapter 3: State Complaints

Advance Organizers

Why are States Required to Development and Implement Complaint Procedures?

What is a State Complaint?

Who May File a State Complaint?

The Advantages of Filing a State Complaint

Tips on Completing a State Complaint

The SEA Complaint Resolution Process

Differences Between a State Complaint and a Due Process Hearing

Conclusion

References

Chapter 4: Mediation

Advance Organizers

What is Mediation?

Mediation as a Process

Why Choose Mediation?

Step One: The Beginning of a Mediation Session

Step Two: The Specifics of the Issue Being Mediated

Step Three: Conduct the Mediation Session

Preparation for Mediation



First: Focus on Purpose
Second: Clarify the Issues
Third: Develop an Index of Documents
Fourth: Develop a Summary
Fifth: State Your Issues
Sixth: Plan Sufficient Time for the Process
Seventh: Attendees at the Mediation
Eighth: Review the Procedural Safeguards
Ninth: Focus on Your Goals

What Makes for an Effective Mediation?

Mediation Agreements

Conclusion

References

Chapter 5: The Resolution Meeting

Advance Organizers

Resolution Meetings

The Courts and Resolution Meeting

Participants in the Resolution Meeting

Reaching a Resolution Agreement

Benefits of Resolution Meetings

Preparing for a Resolution Meeting

Conclusion

References

Chapter 6: Settlement Agreements

Advance Organizers

The Purpose of a Settlement Agreement

Settlement Agreements and Mediation

Settlement Agreements and Resolution Meetings

The Contents of a Settlement Agreement

Enforcement of Settlement Agreements

Conclusion

References

Chapter 7: Due Process Hearings

Advance Organizers

Due Process Hearings

One Tier and Two Tier Due Process Hearing Systems

What Is Meant by Special Education Due Process?

The Qualifications and Independence of the Hearing Officer

Procedural and Substantive Issues



Who May Request a Due Process Hearing?
Timeline of a Due Process Hearing
Notice of a Due Process Hearing
Sufficiency Challenge

Amended Due Process Hearing Complaint

Preliminary Meetings/Prehearing Due Process Hearing Conference

Prehearing Subject Matter

Disclosure of Exhibits, Witness List, and Introduction of Evidence

Stay-Put Rule

Due Process Hearing Basics

The Conduct of the Due Process Hearing

The Burden of Proof in a Due Process Hearing

Hearing Officers’ Ruling

Civil Action

Conclusion

References

Chapter 8: What to Expect in a Due Process Hearing

Advance Organizers

Before the Hearing

Location

The Actual Hearing

Stipulations

Opening Statements

Presentation of Witnesses

Sequestration

Witness Offer

Expert Testimony

Exhibits

Expedited Hearings

Closing Statement

Written Closing Statements

Hearing Officer Ruling

Appeal

Implementing the Decision

Conclusion

Chapter 9: Expert Testimony

Advance Organizers

Ethical Considerations

Expert Testimony and the Law

What is an Expert Witness?

Conflicting Experts

Special Education Expert Witness and the Supreme Court

Position on Expert Witness Feed of the Council of Parent Attorneys and Advocates

Expert Witness v. Lay Witness

Testifying as an Expert Witness

Scheduling Issues

Mutually Agreed Upon Experts

Conclusion

References

Chapter 10: Witness Preparation for a Due Process Hearing

Advance Organizers

The Basics of Testimony

Direct Examination

Cross-Examination

Preparing Witnesses for Testifying

The Importance of Thorough Preparation

The Process of Testifying

What to Take to the Witness Seat?

Making an Impression

Conclusion

References

Chapter 11: School District Preparation for Due Process Hearings

Advance Organizers

Prevention

The Due Process Hearing Complaint

Preparing for a Due Process Hearing

Notifying and Interviewing Personnel who may be Involved in the Hearing



Superintendent of the School District
Attorney for the School District
Insurance Carrier for the School District
Principals, Teachers, and Others who may be Involved

Gathering Relevant Documents



Anecdotal Notes
Emails and Correspondence

After a Hearing

Reviewing the Hearing Officer’s Order

Addressing Staff Morale

Addressing Inappropriate Actions by School Personnel

Providing Staff Development

Rebuilding Relationships with Parents

Adjusting Policies and Procedures

Conclusion

References

Chapter 12: Parent Preparation for a Due Process Hearing

Advance Organizers

Why Parents File Due Process Complaints

Strategies for Improving Collaboration

Strategy #1: Stay Child-Centered

Strategy #2: Treat Others Respectfully

Strategy #3: Meet Face-to-Face

Strategy #4: Contact the Correct School District Personnel

Strategy #5: Identify the Primary Issue

Strategy #6: Do Your Research

Strategy #7: Have Follow-Up Meetings

Deciding to Request a Due Process Hearing

Pre-Hearing Request Steps

Step One: Identify the Issue

Step Two: Consider the Outcome

Step Three: Gather and Organize All of the Files

Step Four: Review the Files

Step Five: Organize

Step Six: Table of Contents

Step Seven: Review Your Documents

Deciding on Hiring an Attorney

Choosing an Attorney

Pro Se Representation

Positive Aspects of Proceeding Pro Se

Negative Aspects of Proceeding Pro Se

Additional Advice for Parents

Filing a Due Process Complaint

Consider Settling the Dispute

Participating in a Due Process Hearing

Conclusion

References

Chapter 13: How to Read a Due Process Hearing Decision

Advance Organizers

What is a Decision?

How to Read a Decision

Part One: Cover Page

Part Two: Executive Summary

Part Three: The Issues in the Case

Part Four: The Facts of the Case

Part Five: Discussion and Conclusion of Law

Part Six: The Hearing Officer’s Order

What Happens After the Decision?

Conclusion

Chapter 14: After a Due Process Hearing

Advance Organizers

The Relief that a Hearing Officer May Order

Appealing a Due Process Hearing Decision

Should There Be an Appeal?

Appealing a Hearing Officer’s Decision

The Appeals Process



Information in an Appeal of a Hearing
Appellate Briefs
The Transcript of the Due Process Hearing

After Appealing a Court Decision

Learning from a Due Process Hearing or State Complaint

Plane v. Car Crash Analogy

Opportunities to Learn from Due Process Hearings and State Complaints

Expenses to be Weighed

Conclusion

References

Appendix A: Settlement and Release Agreement

Appendix B: Due Process Hearing Decision

Appendix C: Letter from a Hearing Officer to Parent

Appendix D: Opening Statement of Hearing Officer

Appendix E: Glossary of Legal Terms for Hearings

References

Index

About the Authors