Fast Fact Friday: Statute of Limitations

Under the IDEA there is a two-year statute of limitation for filing a due process complaint. What this means is that a due process complaint must allege a violation that occurred not more than two years before the date the parent or public agency knew or should have known about the alleged action that forms the basis of the due process complaint. See 34 C.F.R. 300.507(a)(2). It is up to a hearing officer or ALJ to make the decision as to whether the parent should have known about the alleged action that forms the basis of the complaint. See Analysis of Comments and Changes to 2006 IDEA Part B Regulations, 71 Fed. Reg. 46706 (2006).

Under the IDEA there are several exceptions to the two-year statute of limitations. It does not apply to a parent if the parent was prevented from filing a complaint due to: 1) Specific misrepresentations by the district that it had resolved the problems forming the basis of the complaint; or 2) The district's withholding of information from the parent that the IDEA required it to provide. See 34 CFR 300.511(f). The Department of Education declined to define the term "misrepresentations" as used in that section. See Analysis of Comments and Changes to 2006 IDEA Part B Regulations, 71 Fed. Reg. 46706 (2006).

If a state law has set an explicit time limitation for requesting a due process hearing, the IDEA defers to the state's law. See 34 CFR 300.507(a)(2).

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.

Learning Disabilities Awareness Month

October is Learning Disabilities Awareness Month here in the U.S. In 1985, President Ronald Reagan issued a proclamation designating Learning Disabilities Awareness Month, and stating

"Awareness of learning disabilities is one of the most important advances in education in recent years. As more and more Americans become aware, our citizens with learning disabilities will have greater opportunity to lead full and productive lives and to make a contribution to our society."

Increased awareness - better educational programs - greater opportunities! That's the idea, and we can all play a role in making it a reality. For Learning Disabilities Awareness Month, we encourage all of our readers to participate; here are some ideas:

• Increase your own awareness - educate yourself about different types of learning disabilities, programs that are appropriate to remediate learning deficits, etc. Check out LD Online, the Learning Disabilities Association, and the National Center for Learning Disabilities as good starting place. Or go to your local library and check out books on learning disabilities. Each of the websites listed above has "recommended books," and I recommend Overcoming Dyslexia - even though there are more current books out there, it provides a very comprehensive overview.
• Talk to your child. If you have a child with a learning disability, this may be a great time to talk to him or her about his/her disability. Understanding your own learning needs is the first step to learning to self-advocate! There are children's books and other resources available that can help open the door for communication about these issues. Check out, for example, I Wish I Could Fly Like a Bird, a great story that teaches children to understand and accept differences. This is also a great book to share with your child's teacher as a way to introduce the topic of learning disabilities and other differences to classmates. And if you have a child who is non-disabled, this book is a great tool to increase his/her awareness of learning differences as well.
  
• Share with your family and friends. Awareness happens because people who know and care about the issue talk about it with others. Talk to your friends about learning disabilities. Share your personal stories and insight and help them to understand why awareness matters.
• Find local events. Find your local Learning Disabilities Association chapter, parent support groups for parents of students with learning disabilities, or other community groups. Many groups may be having local events to promote awareness throughout October that you can get involved in.

Throughout October, we will be posting various blog articles about Learning Disabilities, particularly focusing on special education issues related to students with learning disabilities. Check back later for more information and updates, and feel free to leave a comment if there are particular issues related to this topic you want us to talk about!

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
  

Fast Fact Friday: The 5 Day Rule

We are entrenched in preparation for a due process hearing this week, so I thought a quick overview of one of the "rules" for a hearing would be appropriate as a Fast Fact Friday.

The IDEA's "5 day rule" for disclosure of evaluations states that:

"(A) Not less than 5 business days prior to a hearing conducted pursuant to paragraph (1), each party shall disclose to all other parties all evaluations completed by that date, and recommendations based on the offering party's evaluations, that the party intends to use at the hearing.
(B) A hearing officer may bar any party that fails to comply with subparagraph (A) from introducing the relevant evaluation or recommendation at the hearing without the consent of the other party."

The requirement to disclose evaluations and recommendations is mandatory for both parties. For parents and their representatives, this means that any independent educational evaluations, private assessments, expert observations / reports, etc that you have obtained and will be relying upon in the hearing must be provided to the school district and/or their legal representatives 5 business days prior to the start of the hearing. This will most likely require advanced planning and communication with any experts / evaluators to make sure that any pending evaluation reports will be available to you in enough time to meet this requirement.

The remedy / punishment for failing to meet this requirement is discretionary for the hearing officer. The hearing officer is permitted by statute to bar introduction of the "relevant evaluation or recommendation." This does not mean that the hearing officer must bar the evidence. Note that the statute allows for barring not only the evaluation (i.e. the report) but also the recommendation, which could be interpreted to mean that the hearing officer can bar testimony from that expert about their recommendations for the student's program (i.e. their expert opinion).

Senator Kennedy's Inspiration and Call to Action for Advocates

Last year, I was volunteering for the Obama Presidential Campaign as a Precinct Captain in my neighborhood, and also with the national call team. I was pretty fired up about the election as a whole, and watched and read the news every day avidly. Among all of the great moments, two moments at the top of my list of "important moments" both involved Ted Kennedy. The first was the day of the announcement during the primaries that Kennedy was endorsing Obama. The second was the speech given by Kennedy at the convention.

I guess, for me, those two moments were inspiring because I have always been such an admirer of Senator Kennedy, especially (as a student of rhetoric) in terms of his skill as an orator. I remember hearing that he was endorsing Obama and feeling so proud that I was involved in something he too believed in. I remember listening to the speech and comparing it to all of those I had read and heard from the earlier days in his career, and thinking about how admirable it is to see a person who is so consistent with his passion, devotion and message throughout his life.

I studied Speech Communications in my undergraduate studies at the University of Georgia. We studied various forms of rhetoric, reading speeches given in the context of social movements, from the Woman's Suffrage Movement to the Civil Rights Movement and beyond, orations given during political campaigns, and in moments of national crisis or disaster. Ted Kennedy was one of the great orators of our time. Now we can debate as to what was the greatest speech of his life, which speech was most moving, inspiring, or most important. There are many to choose from; the most notable perhaps being "The Dream Never Dies" speech from the 1980 DNC, in which Kennedy talked about all of the issues he had championed throughout his career, and ended with the rousing words "the work goes on, the cause endures, the hope still lives, and the dream shall never die." Then of course, there is the emotional and inspirational speech given at Bobby Kennedy's funeral, when he spoke of the hopes of his brother for a better world, saying the moving words "Those of us who loved him and who take him to his rest today, pray that what he was to us and what he wished for others will some day come to pass for all the world."

If you study the speeches and interviews of Ted Kennedy, it is statements like these that sum him up so well. These statements speak to the hope that he envisioned for America, the dreams and causes he believed in and fought for, and the endurance of those hopes.

For me, one of the speeches I love is not from a great moment like a funeral or a convention. It was an interview in the early 1970's in which Kennedy talked about why he believed Health Care Reform was necessary. He spoke frankly about his families struggles with medical issues, and talked about the fact that they were fortunate to have access to quality health care when they needed it. He talked about Health Care as being a right, not a privilege, and about his vision for an America in which any family would have access to the medical care they needed.

This is why I admired Ted Kennedy as a Senator, a leader. He saw issues that affect us at our most fundamental levels and looked for ways to make the world a better place. He championed the causes of the disadvantaged, and inspired others to do so likewise.

As a disability advocate, I owe much to this inspiration, and his work. Senator Kennedy introduced the Americans with Disabilities Act in 1990, prohibiting discrimination against persons with disabilities in the workplace, and requiring reasonable accommodations and accessibility which literally opened the doors to people with disabilities in places like theaters, shops, museums, hotels and restaurants. He was instrumental in the Family Opportunity Act, opening up access to Medicaid for families of disabled children, even if they were not in the "low income" status; the Help America Vote Act, requiring polling places to provide a machine that ensured access and privacy for voters with disabilities; and the Mental Health Parity Bill, which required mental health and substance abuse coverage to be on par with other coverage. Other important disability legislation included the Fair Housing Act Amendments, the Air Carriers Access Act, the Civil Rights Commission Amendments, the Comprehensive Services and Developmental Disabilities Amendments, the Crime Victims and Disabilities Awareness Act, the Employment Opportunities for Disabled Americans Act and countless others.

And of course, as an advocate in the special education field, I must be eternally grateful for Senator Kennedy's work on the Individuals with Disabilities Education Act (IDEA) and No Child Left Behind. He passionately believed, in his own words, that "all children deserve a quality education." He was an original co-sponsor of the Education for All Handicapped Children Act in 1975, which later became the IDEA, recognizing the fundamental importance of ensuring that students with disabilities were given the right to a free appropriate public education. He was also an original co-sponsor of the Handicapped Children's Protection Act, allowing for prevailing parents to recover attorneys fees, which was an important early step in ensuring a level playing field. Senator Kennedy remained committed to the cause of special education, sponsoring and negotiating the re-authorizations of the IDEA throughout the years, and he continued even through the last year to push for legislation that would promote a fair and level playing field and hearing process to protect the rights of children with disabilities.

A lifetime of work on these important issues does not come to a halt now. Now the burden is on us, the advocates and attorneys, the parents and loved ones of persons affected by disabilities, the teachers and educators, the law makers, and the community as a whole. Perhaps none of us can live up to what he has accomplished on behalf of persons with disabilities. But we must now strive to ensure that the cause goes on, and that the dream doesn't die.