Families & the Community

States Found Moving to Head Off Due-Process Hearings

By Christina A. Samuels — June 13, 2008 4 min read
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The fear of due-process hearings looms large in disputes between parents of children with disabilities and schools.

But more than 80 percent of requests for due process—a legal remedy outlined in the federal Individuals with Disabilities Education Act—never get to the point at which a hearing is held, according to an official with a national technical-assistance center on resolving special education disputes.

A recent analysis released by the center and a group that represents state special education directors describes the many methods states are using to head off due-process hearings by resolving complaints before they come to a head.

The 10 methods described in the report, which include parent-to-parent assistance, third-party mediation, and facilitation of individualized-education-program, or IEP, meetings, all have one thing in common: repairing the frayed lines of communication between the school and the parent, said Philip Moses, the assistant director of the Consortium for Appropriate Dispute Resolution in Special Education. Lack of communication is one of the top concerns that lead to due-process hearings, he said.

His organization, known as CADRE and based in Eugene, Ore., is a federally funded center that provides nationwide technical help to states, schools, parent centers, and families. The National Association of State Directors of Special Education, in Alexandria, Va., was the second sponsor of the analysis.

“Clearly, the landscape of special education dispute resolution is growing both in breadth and depth,” Mr. Moses said.

State Surveys

The analysis, released June 5, was based on surveys sent to all the states, and the District of Columbia. Forty-three state agencies completed the surveys, and eight of those states were picked for in-depth interviews.

Most of the states surveyed, 33 in all, said they use some type of over-the-phone intermediary services, making that the technique most often used as a way of getting dispute resolution information to families. The state employees providing information don’t negotiate directly between districts and parents. Their benefit appears to be that parents can get answers to their questions quickly, the analysis says.

The next most common type of dispute resolution used by states is referred to as “early complaint resolution.” Though early dispute resolution takes different forms in different states, the approach usually offers an informal process of addressing a parent’s concerns.

One example the report describes is the process used in Oregon, where the state has 10 days after the receipt of a complaint from a parent to contact both the school district and the student’s family, and identify and clarify issues of concern.

“In some cases, [district] personnel were not aware of the concern prior to contact from the state and worked successfully to resolve the issue without state intervention,” the report says.

States and families also tap the expertise of parent volunteers as a way to address problems. The study offers Virginia as an example of a state with a robust parent-assistance mechanism: A state-level parent coordinator provides technical help to localities, and some districts also have parent ombudsmen, themselves often parents of children with disabilities, “who act as a source of information and referral.”

One of the fastest-growing types of dispute resolution is the newest, referred to in the survey as “resolution meeting facilitation.” The 2004 congressional reauthorization of the idea—the most recent version of the law—says that within 15 days of receiving notice of a due-process complaint a school district must convene a meeting with parents and relevant members of an IEP team to discuss the complaint and try to resolve the issues. Such meetings often use third-party facilitators that can maintain an atmosphere of neutrality during the resolution meeting.

Using a Third Party

Mr. Moses said CADRE is in the process of interviewing state education officials and parents to get more information about the resolution-facilitation process. Fourteen states said they were using this method of dispute resolution, three were in a planning or development stage, and two others had piloted such programs in some regions or localities. States reported a wide range of experiences with the processes. The use of a third party, though, seems to prompt both parents and school districts to invest in the opportunity, the report says.

“It’s such a new process that it’s really going to be a few years before the dust settles,” Mr. Moses said.

IEP facilitation is another method that encourages the use of third parties other than the district and the school, and it appears to be growing, according to the survey analysis. Of the states that responded to the survey, 24 said they were using it in some form, while eight were in the planning stage, and six said the method was in use in some areas of the states. In that method, a third party is used in an IEP meeting when the climate is adversarial, or if the IEP meeting is expected to be particularly complex or controversial.

Some states contract with colleges or use retired district employees as third-party facilitators. Others use volunteer lawyers or mediators who function in other domains, such as family or business mediation.

Mr. Moses said CADRE is trying to encourage states to keep more information on their dispute-resolution methods, even though idea does not require it. If eight out of 10 due-process requests are resolved without a hearing, the question is how, he said.

“What else is happening? If you capture it and understand it, maybe you can take advantage of it,” he said.

A version of this article appeared in the June 18, 2008 edition of Education Week as States Found Moving to Head Off Due-Process Hearings

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