Due Process Cases: Insufficiency of Complaints

When parents disagree with the IEP proposed for their child, with the denial of eligibility for special education, with evaluations conducted by the District, etc, they have the right to present a complaint to initiate "due process" in order to resolve their dispute. The 2004 amendments to IDEA added language specifying the contents of a complaint that is filed to initiate due process. Additionally, language was added that allows school districts (or the responding party) to assert that the complaint was not sufficient; i.e. that it does not include all of the required information. Hearing officers / ALJ's are charged with determining the sufficiency of the complaint. Specifically, the IDEA states that "a party may not have a due process hearing until the party, or the attorney representing the party, files a notice that meets" these requirements. See 20 U.S.C. section 1415(b)(7)(B).

This places a burden on the filing party, which especially affects unrepresented parents who may be unfamiliar with the requirements and technical aspects of the process. If parents need assistance with this process, it is advisable that they seek out a special education attorney.

What information is required for a complaint to be "sufficient"?

IDEA (at 20 U.S.C. section 1415(b)(7)(A)(ii)) requires the following to be included in the complaint:

• Name of the child
• Address of the residence of the child
• Available contact information if the child is homeless
  
• Name of the school the child is attending
• The Issue / Problem presented: "Description of the nature of the problem of the child relating to such proposed initiation or change..."
• The Facts: "including facts relating to such problem..."
• The Proposed Resolution of the Problem

What is a "Notice of Insufficiency?"

Many school district attorneys now have a practice of filing a document, sometimes referred to as Notice of Insufficiency" to assert that the parents' complaint was not sufficient / does not contain all of the required information. Most often, these filings will allege that the complaint did not specify sufficient facts related to the problem, or did not clearly identify what the specific problem is.

An assertion that a complaint is not "sufficient" usually comes down to something subjective, and is not a clear-cut case of required information being totally left out. It usually involves how the information is presented / explained as to the facts, the issue or the proposed resolution.

Here are some examples of arguments we have seen regarding insufficiency of a due process complaint:

• Not enough facts to explain why the proposed IEP would not meet student's unique needs
• Issue regarding inappropriateness of goals not clear enough for District to determine what areas Parents believed were not addressed
• Issues relating to violations of procedural safeguards do not include sufficient facts to clarify basis for the allegations
  
• Proposed resolutions do not include information regarding specific amounts sought for reimbursement, compensatory hours, etc
• Proposed resolutions are not clear as to what prospective program parents are seeking

Sufficiency requirements in many states have increased exponentially the burden on parents filing for due process, and made it much more difficult for parents to go through this process unrepresented, thereby decreasing access to due process. Here in California, this has been the subject of much discussion among the parent-advocacy community. Some school district representatives have a practice of sending out a Notice of Insufficiency on every case, and we have even had one tell us she would be filing such a Notice even though she had admittedly not yet even reviewed the complaint's contents.

In at least one state, action has been taken to attempt to alleviate some of this burden. Click here to access the state of Ohio's information about a settlement agreement reached on this issue. What is informative in the "order of settlement" is the language in regards to what "sufficiency requirements" should mean:

[The IDEA] does not require a due process complaint to reach the level of sufficiency and detail of a complaint in a court of law.
That the purpose of the sufficiency requirement is to ensure that the other party will have an awareness and understanding of the issues forming the basis for the complaint, and
That due process complaints should be construed in light of Schaffer vs. Weast... and Escambia County Board of Education vs. Benton...
IHO's will be instructed that the standard in Schaffer and Escambia for reviewing the sufficiency of a due process request is a minimal pleading standard and is lower than the standard for reviewing complaints in court.

Ohio also now posts redacted copies of decisions / orders determining sufficiency of complaints, in compliance with the terms of this settlement.

What happens next?

If the responding party files a Notice of Insufficiency, the ALJ / Hearing Officer should rule on whether or not the complaint is sufficient. As stated, this often comes down to a subjective issue - it isn't usually the case that a child's name or address, for example, was left out. Therefore, the ALJ has to look at the complaint itself and determine if there is enough information in the "facts," "issues," and "resolution" to give the responding party notice of the basis for the complaint. If a complaint is not sufficient, the hearing will not go forward until a sufficient complaint is filed, meaning that either the case will be dismissed and have to be refiled, or that the filing party will be allowed by the ALJ / Hearing Officer to amend the complaint.

Can Parents file a Notice of Insufficiency?

Yes. If a school district files a request for due process, the the parent is the "responding party." The school district's complaint is also subject to sufficiency requirements in terms of what information must be included. If a parent / parent's representative believes that the information is not sufficient, he/she can also alert the ALJ / Hearing Officer and ask for a determination of sufficiency.

What about forms, etc for filing for Due Process?

The IDEA requires state educational agencies to develop "model forms to assist parents and public agencies in filing a due process complaint." 34 C.F.R. 300.509. Thus, many school districts / local educational agencies have forms that they provide parents to fill out when a parent disagrees and wishes to file for due process. The state educational agency may also provide such a form. Presumably, such a form would contain boxes or lines for each of the required areas, thereby guiding parents to ensure that all required information is included. Note that just because a school district or state agency provides a form, does not mean that a parent must utilize the form to file a request. Rather, any document that comports with the requirements under IDEA should initiate the process.

Here are some useful links to examples from various state educational agencies:

Connecticut
Illinois
Kentucky
Maine
Maryland
Michigan
Missouri
Neveda
New Jersey
Texas
Vermont

*note: the links in this list provide a sampling of state pages directly related to due process request forms. For a comprehensive list of state special education department websites in general, check out the list provided by the Council of Parent Attorneys and Advocates at this link.

Parents can seek out additional information from a special education attorney or experienced advocate, their state educational agency, or their local school district.

Due Process Cases: What is Mediation All About?

Mediation is a voluntary alternative dispute resolution process in which an impartial third party ("mediator") helps the parties to resolve their dispute but does not and cannot impose a solution.

Mediation Under the IDEA:

States are required to "ensure that procedures are established and implemented to allow parties to disputes involving any matter, including matters arising prior to the filing of a complaint... to resolve such disputes through a mediation process." 20 U.S.C. section 1415(e)(1).

States must "ensure that the mediation process (i) is voluntary on the part of the parties; (ii) is not used to deny or delay a parent's right to a due process hearing...; (iii) is conducted by a qualified and impartial mediator who is trained in effective mediation techniques." 20 U.S.C. section 1415(e)(2).

What to Expect:

A mediation session usually happens fairly shortly after the 30 day "resolution period" contemplated for in the IDEA, or in some states may even be available during that time period. Note that in some instances, parties may not have both a resolution session and a mediation. Mediation is voluntary, so the parties can decide not to attend / participate. Unless each side is clearly not going to attempt to reach an agreement, mediation is worth your time to attempt to reach a settlement.

At the start of the mediation, an effective mediator should describe the process to parents and their representatives. Typically, a mediator will let the parties know that mediation is confidential, and that what is discussed in mediation can't be put into evidence at a subsequent hearing. A mediator should also explain any rules for the process, explain whether all parties will remain in one room or "caucus" separately, and answer any questions.

Sometimes, it is helpful for the parties to give a brief statement that provides an overview of their position and of what they are seeking in a settlement agreement. This is both for the benefit of the mediator - who needs this information to effectively guide communication - and is for the other side - who needs to hear what your position is and how strong you are in it.

A mediator's role is essentially to help with the communications between the parties. While there are many theories of effective mediation techniques, in terms of whether the mediator is simply relaying information or is more involved in helping to brainstorm solutions, a good mediator will always be able to effectively communicate each party's position and offer to the other side.

Many special education disputes are resolved through mediation. Ideally, mediation also allows for the two sides to communicate and air their disputes so that parents and the district may have a chance in the future of a productive relationship.

Due Process Cases: What is a Resolution Session?

"Informal Dispute Resolution" can refer to many different things in the context of special education cases. Many school districts may have their own informal dispute resolution ("IDR") processes, in which a parent can meet with or speak with someone about their disagreements without having to file for a due process hearing or go to a mediation. Even in the context of a due process case, there is an opportunity to "informally resolve" the issues between the parents and the district.

Definition of "Resolution Session"

A resolution session is a process by which parties meet without a neutral third party and attempt to resolve their dispute.

Rules / Statutory Basis

The Resolution Session and Informal Resolution Period were created in the 2004 changes to IDEA;

"Prior to the opportunity for an impartial due process hearing... the local educational agency shall convene a meeting with the parents and the relevant member or members of the IEP Team who have specific knowledge of the facts identified in the complaint
(i) within 15 days of receiving notice of the parents complaint;
(ii) which shall include a representative of the agency who has decision-making authority on behalf of such agency;
(iii) which may not include an attorney of the local educational agency unless the parent is accompanied by an attorney; and
(iv) where the parents of the child discuss their complaint, and the facts that form the basis of the complaint, and the local educational agency is provided the opportunity to resolve the complaint, unless the parents and the local educational agency agree in writing to waive such meeting or agree to use the mediation process in lieu of the resolution session"

20 U.S.C. section 1415(f)(1)(B)

Any agreement made in the resolution session must be in writing, is enforceable, and can be voided by either party within 3 business days of execution. 20 U.S.C. section 1415(f)(1)(B)(iii)&(iv).

What to Expect:

An informal resolution session is to be held within 15 days after parents filed for due process. The statute allows for a 30 day "resolution period" meaning that although the resolution session must occur within the first 15 days, the district has an opportunity to try to resolve the dispute within 30 days before the time period for the hearing and a decision commences. If a district files for due process against a parent an informal resolution session does not have to be held and the 30 day period does not toll.

A school district representative will most likely contact the parents prior to the deadline to schedule a resolution session (sometimes referred to as an "informal"). Parents are required to attend the resolution session, unless the parties both agree in writing to waive it. If the school district doesn't agree, and parents still refuse to participate, then all of the applicable timelines stop until parents agree to go to the informal.

Whether attorneys or advocates attend the resolution session with parents is a case-by-case determination. There are pros and cons of having and attorney or advocate there, but many parents feel that they would be easily bullied if they went alone. The law anticipated that attorneys would not be involved in this process, and therefore parents cannot get reimbursed for an attorney's time spent attending the resolution session.

A resolution session is sometimes convened with only the parents and a district representative, like a special education director. However, sometimes the school district will have many participants, including members of the IEP team.

Even if a district does not typically settle cases at this level, the informal resolution process can be helpful to the overall settlement negotiations in a case. Often, the fact that a "decision-maker" has been forced to immediately get involved in the case, to meet with the parents first-hand, and to familiarize themselves with the facts contained in the complaint, can be very effective. Sometimes, if a subsequent mediation is held, it may be much more productive because it is not the first time the parties meet, and the "decision-maker" will at least have already read the complaint.

Fast Fact Friday: Alternative Dispute Resolution

"Alternative Dispute Resolution" encompasses many processes by which parties resolve disagreements without going through a trial. There are many benefits to ADR in general, which include saving time and money for the parties, and possibly achieving better and more participant-oriented results. ADR has grown increasingly popular in all kinds of cases, due in part to the realization that it could lead to faster results than if parties waited to go through a hearing or a trial in an over-burdened court or hearing system.

In special education, ADR includes the following:

• Informal Dispute Resolution processes established within the procedures of the local school districts, allowing for parents and the district to discuss disagreements and possible solutions without filing for due process
• Resolution Sessions under IDEA 2004, which are held within 15 days of when a parent files for due process, and include parents and district representatives, possibly IEP team members
• Mediation, a voluntary process in which a neutral third party mediator, assigned through whatever system is established in your state, meets with the parties to try to help them resolve their disagreement and reach a settlement
• Settlement negotiations and written settlement offers, which may occur at any point during the case between the parties and which allow for the parties to attempt, independently of a third party, to reach a negotiated settlement