Special Education: When Parents and Schools Disagree
One job of an Individual Education Program (IEP) Team is to work together to develop appropriate programming for the child. While sometimes the team agrees, there are times when the parent and school do not agree. If the issue cannot be worked out within the IEP Team meeting, the Individual’s with Disabilities Education Act (IDEA) allows for three different ways to solve the problem. They are:
Who can request mediation?
- Child who is aged 18 or older
What is mediation?
Mediation is an opportunity for both side to talk about their differences and try and reach an agreement. Mediation is voluntary and either side can say that they do not want to participate. You can even decide in the middle of the mediation that you no longer would like to participate! The Department of Education pays for mediation so it is provided at no cost to the parents.
Typically, it is held around a table with the parent, a representative from the school, and a mediator. The mediator’s role is to listen to both sides of the case and try and help both sides come to an agreement. At some points during mediation, the two parties may be separated into different rooms with the mediator going in-between both rooms discussing the different opinions. The mediator can help both sides comes to an agreement but cannot require that a certain agreement be made.
Who are the mediators?
A mediator is appointed by the Commissioner of Education. This person is trained in mediation techniques and is knowledgeable about special education law. A mediator does not root for either the parents or the school. They do not choose the side that they feel is correct and should not give legal advice to either side.
How do you request a mediation?
You may request mediation by filling out a Dispute Resolution Request Form or by calling (207) 624-6644. You will need to send the form to the Department of Education and a copy of the form to the school. Be sure to keep a copy for yourself!
What happens after you request mediation?
After you fill out and send in your request for mediation you will get a letter in the mail or by email. This letter will tell you who your mediator is and when and where the mediation will take place. The mediation will be scheduled for as soon as possible at a location that is convenient to both parties.
The day of mediation, the parties will get together with the mediator and talk about their concerns. Any discussion during mediation is confidential and cannot be discussed outside of the mediation. You may be required to sign something before mediation begins saying that you will keep the information discussed at mediation confidential. The only things that are not confidential at mediation are:
The agreement you and the school make, or
Any disclosure that the child was abused or neglected. This would have to be reported to DHHS.
What happens if you reach an agreement during mediation?
If you reach an agreement during mediation, congratulations! This means that your case has been settled and there will be no further action with the Department of Education. The agreement will be written down and signed by the parent and the school representative. This agreement is what is called binding. That means that whatever both parties have agreed to has to be done. Otherwise, the party who did not do what the agreement requires can be taken to court or have a complaint filed against them with the Department of Education.
Who can file a complaint?
Why would you file a complaint?
Any of the above individuals can file a complaint against a school if they believe that their rights or their child’s rights under IDEA have been violated. Some examples include:
The school did not act on a special education referral that was made for the child
The school did not follow the Individualized Educational Program (IEP)
How long do you have to file a complaint?
Generally, a complaint must be filed within 1 year of the violation. If the violation keeps happening, a complaint can be filed at any time. If you are asking for services to be made up that have been miss in the past, you have 2 years from when those services were missed to file a complaint. This is known as asking for compensation education or “comp ed.”
How do you file a complaint?
To file a complaint, you will need to fill out the Dispute Resolution Form from the Department of Education’s website. (Located here: http://www.maine.gov/doe/specialed/forms/disputeres-req.pdf) . Check the box for "Complaint Investigation." If you have documents you want the complaint investigator to read, attach them to the form. It will help the investigator if you attach supporting documents. You must give suggestions for how to fix the problem. Send everything to the Department of Education and a copy to the school. Keep a copy for yourself.
What happens when you file a complaint?
When the Department of Education gets the complaint, it will decide if an investigation is needed. If it is, the Department of Education will assign a neutral third party to do an on-site visit to the school. During the investigation, the person who filed the complaint will be able to give more information. The school will be able to respond to the complaint and try and resolve any issues. Mediation may also be offered.
From the time the complaint is filed the investigation and written decision need to be completed within 60 days. The timeline may be longer if:
There are exceptional circumstances.
The parties agree to more time because they are going to mediation.
If you file a complaint and at the same time for the same problems, the complaint process will not start until after the due process hearing decision is made.
The written decision must include what facts the investigator found, how the facts point to there being a violation of the law or there being no violation, and the reason for the decision. If there are violations found, the school will be ordered to take corrective action, such as:
Provide appropriate services to address a child’s needs.
Reimburse the parent for services that they paid for that the school should have been providing.
Make appropriate changes to make sure special education children receive the services that they need.
If the Department of Education does not find any violations, no order against the school will be made.
DUE PROCESS HEARING
What is a Due Process Hearing?
A Due Process Hearing is when one party, either the parent/adult child or the school, does not agree with a decision that was made and would like a hearing to determine what the appropriate legal decision should be. This is very similar to a court hearing but not quite as formal. The process is known as an administrative hearing.
Who Are the Hearing Officers?
Hearing officers cannot work for the Department of Education or for the school district that is involved in the case. They must be fair and neutral. The Department of Education and the schools keep a list of hearing officers and their qualifications.
Who Can Ask for a Hearing?
A parent or adult student can ask for a due process hearing if they disagree with:
The IEP Team’s determination of the student’s eligibility for special education services,
The IEP (either the services being offered or if a child is being educated in the least restrictive environment), or
The manifestation determination.
The school must request a due process hearing if:
It wants to place your child in an (Interim Alternative Education Setting) because it believes your child is a danger to self or others, or
It denies your request for an (Independent Educational Evaluation)
The school can (but does not have to) file a request for due process hearing if you refuse to consent to evaluations of your child. The school can ask the hearing officer to order the evaluations.
When should I ask for a due process hearing?
A due process hearing request must be made within 2 years of when the parent or school knew or should have known about the disagreement. For example, if you go to an IEP Team meeting on January 1, 2020 and disagree with the decisions that are made, you have until January 1, 2022 to file a due process hearing request. This timeline does not apply if:
the school lied and said it resolved the problem, or
the school did not give information to the parent that should have been given to the parent
How do you request a due process hearing?
To file a "due process hearing" request, get a Hearing Request form from the Department of Education and fill it out. (Found here: http://www.maine.gov/doe/specialed/forms/hearing-req.pdf) Send your completed form to the Department of Education and send a copy to the school. Make sure to keep a copy for yourself. If the school files a due process hearing request, it must send you a copy.
The request must be clear and must include:
the name and address of your child or adult student,
if your child is homeless, the available contact information for your child
the name of the school your child attends
a description of the problem, including facts related to it, and
how you would like the problem resolved
The hearing will only address the issues that are written in the request, so be sure to include all the issues in your request.
The other party can challenge the request for not being specific or for not having all the information it should have. The challenge must be in writing and sent to the hearing officer within 15 calendar days of receiving the request. The hearing officer must make her decision about the request within 5 calendar days of getting the challenge. If the hearing officer finds that the request is no good, a new due process hearing request can be filed if:
the other party agrees and is given a chance to hold a "resolution meeting," or
the hearing officer allows a new request to be submitted
Do the due process hearing request need to be responded too?
Yes! If the school files a due process hearing request against you, you need to send a written response to the school within 10 calendar days of when you get the request. Your response must address the issues the school raised.
If you file a due process hearing request, the school has 10 calendar days from when it gets the request to send you its written response. The response must state:
why it made the decision that you do not agree with,
the description of other options considered by the IEP Team,
the reason why those options were rejected,
descriptions of each evaluation, record, and report that supports the school’s decision, and
the facts that led to the school’s decision.
What happens after the request is filed?
Once a parent or adult student files a due process hearing request, the school has 30 calendar days to fix the problems that were raised to the satisfaction of the person filing the request. It does this by scheduling a dispute resolution meeting within 15 calendar days of getting a copy of your due process hearing request. The purpose of the resolution meeting is to give you and the school a chance to work things out. The people who should go to the meeting are:
the parent or adult student,
IEP Team members with knowledge of the facts and issues, and
a school representative with decision-making authority
If the parent does not attend the dispute resolution meeting, the school can ask the hearing officer to dismiss your case. If the case is dismissed, the hearing will not happen.
The resolution meeting does not need to happen if:
both you and the school agree in writing to not have the meeting, or
you and the school agree to go to mediation instead (See mediation
The school cannot have a lawyer at the meeting if you do not have a lawyer at the meeting. For more information see http://www.maine.gov/doe/specialed/support/dispute/procedures/resolutionsessionguidelines.html
What happens if an agreement is reached at the dispute resolution session?
If you reach an agreement, the school has 30 calendar days from when you filed your due process complaint to make the agreed to changes. If the school does not make the changes it agreed to within that time, the due process hearing timeline will begin. (See below) The agreement must be in writing and be signed by the parent/adult student and the school.
You or the school can change your mind about the agreement within 3 business days of when the agreement was signed. After that the agreement is legally enforceable and either side can be brought to court for not doing the agreement. It can also be enforced by filing a complaint with the Department of Education.
What happens if no agreement is reached in the dispute resolution session or mediation?
If no agreement can be reached either through a dispute resolution session or mediation, the case will go to a hearing. The whole due process hearing timeline line happens in 45 calendar days. This timeline does not begin until after the 30 day resolution period is over giving the parties a chance to come to an agreement before a hearing. (Dispute resolution meeting or mediation) The timeline can start before that if:
the school does not hold the resolution meeting within 15 days,
you and the school agree to not have a resolution meeting,
you and the school agree in writing that an agreement is not possible, or
you and the school agreed to mediation after the and one of you then withdraws from mediation
How should you prepare for the hearing?
If you and the school do not reach agreement through a resolution meeting or mediation, there will be a hearing. The hearing officer will schedule a "pre-hearing conference" with you and the school. At the "pre-hearing conference" the hearing officer will determine the issues and ask about both sides witnesses, exhibits (documents, pictures etc.), and any other issues that need to be discussed.
You and/or the school can subpoena witnesses to the hearing. Any person who you send a subpoena to is required to attend the hearing and bring the documents that you requested. The party who wants the subpoena must ask for one ahead of time from the Commissioner of the Maine Department of Education. Any travel costs or fees charged by the witness must be paid for by the party asking for the subpoena.
The school must provide an exhibits list to the parent or adult student at least three business days before the pre-hearing conference. This is a list of the documents they plan on offering to the hearing officer at the hearing. The school will bring this list as well as the documents to the pre-hearing conference.
The parent/adult student will need to prepare a list of the documents that they plan on using at the hearing. Three copies of this list and three copies of all of the documents that the parent/adult student plans on using at the hearing should be brought to the pre-hearing conference. You need to put the date of each document on the exhibit list.
Any document that is not shared with you or that you do not share with the opposing side at least 5 days before the hearing will not be allowed to be used at the hearing. If you have an exhibit that you would like to use, make sure to give it to the other side at least 5 days before the hearing!
What will happen at the hearing?
The first thing that will happen is the hearing officer will make what is called an opening statement. The hearing officer will explain the issues that will be addressed and explain how the hearing will work. The party who requested the hearing will then give an opening statement and then the other side gets a turn.
The party who requested the hearing will then testify under oath as to their side of the story and put on their witnesses to testify. After each witness, the other party will be able to ask more questions of that witness. This is called cross-examination.
Once the first party has called all of their witnesses, the other party will begin to call their witnesses. Just like the first time, once the first round of questions is complete, the other party can cross-examine that witness with additional questions.
After all of the evidence has been presented and all of the witnesses have testified, the parties give closing arguments. This is a chance to talk about all of the facts of the case that show that the law has or has not been violated. Though this can be done out-loud at the hearing, the hearing office may ask for written arguments. If this happens you will be given a date that you need to send in the written argument.
A school district can have a lawyer for the pre-hearing conference and the hearing even if you do not have a lawyer. The hearing will be recorded by the hearing officer.
How will I know the decision of the hearing officer?
The hearing officer must make a decision within 15 calendar days after the hearing has ended. If written arguments were submitted, this means 15 days after they received them. The decision will be based on the evidence presented at the hearing.
If the school loses the hearing, it must comply with the decision within 45 calendar days or file a Court appeal.
What if I do not agree with the decision?
The party who loses can appeal to federal Court or Maine Superior Court within 90 calendar days of receiving the decision. The appealing party must send a copy of the appeal to the Department of Education. An appeal to Court is not a new hearing. Instead, the Court will review the hearing decision for legal errors. A written transcript of your recorded hearing will be made for the Court to review on the appeal. A parent can request a transcript or recording of the hearing and cannot be charged a fee.
Where does my child go to school while the due process hearing is happening?
As you see from the timelines, the process takes a while. While all this is going on, your child stays in his or her "current educational placement." This is the placement your child was in before any changes were made at the IEP team meeting. A different placement can happen if you and the school agree to another placement, or your child has been placed in an IAES (Interim Alternative Education Setting) for 45 school days.
If you do not agree with the school’s decision for your child’s placement, they have to notify you at least 7 days before that placement can happen. In order for your child to stay in their current placement you must file the due process hearing request for the placement is actually changed.
Can I collect attorney’s fees if I hire an attorney?
If you win the due process hearing, the school may be ordered to pay your reasonable attorney's fees (if you were represented by a lawyer). Attorney's fees will not be ordered if:
the school makes a written offer of settlement at least 10 calendar days before the due process hearing
you do not accept the school's offer within 10 calendar days, and
the hearing or Court decision does not give you more than what the school offered
The school can ask for a hearing officer to order you to pay its attorney's fees ONLY IF you made the hearing request for an improper purpose (harassment, unnecessary delay, to increase cost of litigation).
Can this timeline be shorter if my child is currently out of school?
A hearing be on a shorter timeline, expedited, but only if a child has been disciplined by and removed from the school. The hearing is the same as a due process hearing, except the timelines are slightly shorter.
Instead of 30 calendar days to resolve the problem, the school has .
The "resolution session" must happen in instead of 15 calendar days.
If the issue is not resolved within from when the school got the expedited due process hearing request, the hearing timeline is .
The hearing must be held within after the resolution period has ended.
The hearing officer must issue a decision within after the hearing has ended.
If you look at a calendar, you will see that this is not much quicker than the 45 calendar days it takes for a regular due process hearing. In addition, an expedited hearing can be limited to one day. With a regular due process hearing, you are not limited to the number of days needed to present your case.