Special Education

Alternative Proposed to IEP Due Process System

By Christina A. Samuels — May 07, 2013 4 min read

Due process hearings involving students with disabilities are adversarial, expensive, and distracting, says the American Association of School Administrators. Now, the group is proposing a fix: a new process that would bring in an outside consultant who would create an education plan that parents and a school would have to follow for a mutually agreed-upon period before any lawsuits were filed.

In a report called “Rethinking the Special Education Due Process System,” the Alexandria, Va.-based group representing superintendents and other district administrators says the current process is so broken that tinkering will not fix it.

“Our goal is to start a dialogue about this, together with other groups, to see if we can find a compromise,” said Sasha Pudelski, the government-affairs manager for the AASA and the author of the report.

Congress shows no signs of taking up consideration of the Individuals with Disabilities Education Act, which was last reauthorized in 2004. But the topic of due process is getting some attention on Capitol Hill: The Government Accountability Office, the congressional watchdog agency, is in the early stages of working on a report about due process at the request of Rep. John Kline, R-Minn., the chairman of the House Education and the Workforce Committee, said agency spokesman Charles Young.

Currently, when schools and parents cannot come to an agreement over the individualized education program, or IEP, for a student with disabilities, federal special education law calls for a due process hearing. That allows both sides to bring together experts and have their cases aired before an independent hearing officer.

The party that does not prevail in the hearing has the option of taking its case to a federal court.

Advocates Wary

The response to the AASA proposal offers a glimpse of how hard it may be to alter the current system, however.

“Eliminating options is not a good idea,” said S. James Rosenfeld, the director of the National Academy for IDEA Administrative Law Judges and Hearing Officers at the Seattle University School of Law. His recommendation: Offer more avenues for dispute resolution “and let the market work for itself.”

Christopher P. Borreca, a Houston lawyer who has represented schools and districts in IDEA disputes for 20 years, said he applauded the AASA for taking the issue on, but rather than ending due process hearings, he would like to eliminate the option of appealing the outcome in federal court.

“We may get good law that way, but we don’t serve the individual by allowing for the ultimate decision to be put off for so long,” Mr. Borreca said.

Despite the discontent surrounding due process, it’s a relatively rare process in most states. A 2010 study in the Journal of Disability Policy Studies found that in 2008-09, there were 2,033 due process hearings in the country. Eighty-five percent of them were in just five states or cities: the District of Columbia, New York state, California, New Jersey, and Pennsylvania.

The number of due process hearings appears to be on a downward trend, that paper suggested. The IDEA requires districts to offer voluntary mediation services that can be used before a due process complaint is filed.

The AASA’s idea of a “consultant IEP” drafted by an impartial person is already underway in Massachusetts. In 2009, the state-funded “SpedEx” program started providing consultants upon request from parents or districts. So far, 17 cases have been heard, and only one has proceeded to a due process hearing.

In the SpedEx model, neither side is obligated to follow the suggestions of the consultant, who is paid by the state, said David Scanlon, the SpedEx administrator and an associate professor of special education at Boston College.

The program is completely voluntary. Its work has been seen as valuable enough, however, that districts now are asking for a consultant at the same rate as parents. The voluntary nature of the program differs from the AASA proposal, which would require both parties to follow the recommendations of the consultant.

In contrast, Mr. Scanlon said, in the SpedEx model, “we stress the word ‘consult.’ We tell them that a consultant will be offering a recommendation, and the parties will be left to resolve their dispute.”

Even with that neutrality, Mr. Scanlon said, some parents have said they don’t want a consultant with school experience, even if that experience is in a different district, for fear the consultant will be biased toward a district.

Focus on Student Needs

Ms. Pudelski of the AASA said her group’s proposal is not meant to take away the right of parents to sue districts if they are displeased with an IEP. Under the proposal, parents would still be able to do so after following the consultant-crafted IEP for a certain amount of time.

But due process complications are “taking precious dollars away from the educational process itself, when we are facing budget cuts,” Ms. Pudelski argued. A consultant’s proposed education plan for a student might not be to a district’s liking, she said, but districts are willing to take that chance.

“This is a much more child-focused idea,” Ms. Pudelski said.

A version of this article appeared in the May 08, 2013 edition of Education Week as Group Proposes Alternative to IEP Due Process System

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