Special Education Tip-of-the-Day: Due Process—Early Resolution
by Amanda Glass, Equal Justice Works Fellow
Yesterday, we went over how to amend an insufficient due process complaint. Today, we will talk about the possibility of resolving a due process complaint before a hearing takes place.
When a student or parent files a due process complaint, the school must hold a “resolution session” to try to resolve the issues raised in the complaint. The resolution session:
- Occurs within 15 days of when the school learns of the due process complaint;
- Includes the student/parents, the relevant members of the IEP team, and a school representative with decision-making authority;
- Is not attended by school lawyers, unless the parent brings a lawyer to the meeting; and
- Provides an opportunity for the student/parents to discuss their complaint and the facts supporting it and for the school to try to resolve the complaint.
A resolution session is required when the student or parent requests the due process hearing, but is not required when the school requests the due process hearing. If a student or parent files a due process complaint, a resolution session must occur unless both parties waive it or agree to use mediation instead. Waiving the resolution session will affect timelines, and the hearing may be moved to an earlier date.
What if I don’t want to participate in the resolution session?
Unless both parties agree to waive it, the resolution session must take place. At the end of the 30-day resolution period, if you have refused to participate in a resolution session and the school can demonstrate it has made reasonable efforts to hold a session with you, the school can request that the ALJ dismiss your due process complaint.
What if the school does not hold a resolution session?
If the school fails to hold a resolution session within 15 days of receiving notice of your due process complaint, the parent can ask the ALJ to order that the 45-day due process hearing timeline begin.
From the time it receives the student’s or parent’s due process complaint, the school has up to 30 days to resolve the dispute without the need for a hearing (called the “resolution period”).
- When the 30-day resolution period ends, the 45-day timeline for a hearing and decision begins.
- If the parties agree to waive the resolution meeting, the 45-day timeline begins from the date the agreement to waive it is signed.
- If the parties go to a resolution session or mediation but are unable to resolve the dispute, the 45-day timeline begins from the day the parties notify the ALJ in writing that the parties did not resolve the dispute.
- If both parties agree to use mediation, but the dispute has not been resolved by the end of the 30-day resolution period, the parties can agree in writing to extend the resolution period and continue mediating. If either party withdraws from the mediation, then the 45-day hearing timeline begins the next day.
If the parties resolve the dispute in the due process complaint during the resolution period, they must enter into a written agreement that is signed by both parties and is enforceable in state or federal court. A due process hearing is no longer needed. The parties must contact the ALJ so that the Office of Administrative Hearings (OAH) can cancel the hearing.
The Arizona Department of Education (ADE) has created a due process resolution agreement form that the parties may use to put the terms of agreement in writing. Parties can use the form or draft their own agreement.
Even if the parties are able to resolve the dispute and sign an agreement, the parents or the school have the option to back out of the agreement (“void” it) within 3 business daysof the date it is signed. Mediation agreements do not have a grace period to void the agreement—it is effective when it is signed.
The U.S. Department of Education, Office of Special Education Programs, (OSEP), requires all states to report resolution meeting information and outcomes to the federal government every year. Arizona accomplishes this by asking parties to due process complaints to fill out this resolution tracking form and return it to the ALJ assigned to the case and to ADE before the pre-hearing conference.
If the parties are unable to resolve the dispute during the resolution period, the next step is a pre-hearing conference. In tomorrow’s post, we will discuss what the pre-hearing conference is and how parents can prepare for it.
Tomorrow’s Tip-of-the-Day: Due Process—Pre-Hearing Conference
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