If parents and the school still cannot reach an agreement, it’s good to know that IDEA includes specific and formal ways for them to resolve the conflict. These are mediation, filing a complaint, and due process.
In mediation, parents and school personnel sit down with an impartial third person (called a mediator), talk openly about the areas where they disagree, and try to reach agreement.
Mediation provides a positive, less adversarial approach to resolving disputes between parents and school systems. With the assistance of a skilled and impartial mediator, the parties involved in the dispute can communicate openly and respectfully about their differences as they try to reach accord or compromise. The decision-making power resides with the participants in mediation.
IDEA requires that the mediation process meet certain, specific conditions, as follows:
- Mediation must be voluntary on the part of both parties.
- Mediation may not be used to deny or delay a parent’s right to a due process hearing or to deny any other right under Part B of IDEA.
- Mediation must be conducted by a qualified and impartial mediator who is trained in effective mediation techniques.
- The state must select mediators on a random, rotational, or other impartial basis.
- The state must bear the cost of the mediation process.
- An agreement reached by the parties must be set forth in a written mediation agreement.
- Discussions that occur during the mediation process must be confidential. They may not be used as evidence in any subsequent due process hearings or civil proceedings. The parties to the mediation process may be required to sign a confidentiality pledge prior to the beginning of the mediation.
The public agency must make sure that its representative participating in mediation has the authority to enter into a binding agreement on its behalf. A parent may choose to have a friend or advocate attend the mediation session. And, while there is nothing in IDEA that prohibits a parent or public agency from having an attorney attend, the presence of an attorney could contribute to a potentially adversarial atmosphere that may not necessarily be in the best interests of the child.
Office of Legal Services, Special Education Mediation Program
The TEA Office of Legal Services oversees the Special Education Mediation program. Parents and school districts can find information about the special education mediation program at https://tea.texas.gov/…_Special_Education_Mediation_Program/
A state complaint may be filed by parents or by an organization or individual, including those from another state. Written directly to the State Education Agency (SEA), state complaints must describe what requirement of IDEA the school has violated, among other specific things. They must also be signed.
Each SEA must develop a model form to assist parents and other parties in filing a State complaint. However, the SEA or LEA (local education agency) maynot require the use of its model forms. Another form or document may be used so long as the form or document includes the content required for filing a State complaint.
The SEA must either:
- resolve the complaint itself, or
- have a system in place where complaints are filed with the school district and parents can have the district’s decision reviewed by the SEA.
The school system must be given the opportunity to respond to the state complaint, including making a proposal to resolve the complaint.
In most cases, the SEA must resolve the parents’ complaint within 60 calendar days. It must issue a written decision that addresses each of the allegations in the state complaint and includes the reasons for the SEA’s final decision.
If the SEA finds that the school system has failed to provide appropriate services, the SEA must address the failure, including corrective action (such as compensatory services or monetary reimbursement), if appropriate to address the needs of the child.
To learn more about the complaint process in Texas, go to https://tea.texas.gov/../Special_Student_Populations/…Special_Education_Complaints_Process/
When due process is used as a way to resolve disputes, parents and the school present evidence before an impartial third person (called a hearing officer), and he or she decides how to resolve the problem based upon that evidence and the requirements of the IDEA.
Filing a Due Process Complaint
Filing a due process complaint is the first step in the process that may lead to a due process hearing. The complaint must include specific information, as follows:
- the child’s name;
- the address where the child resides;
- the name of the school the child is attending;
- a description of the conflict; and
- a proposed resolution of the conflict, to the extent known and available to the person filing the complaint.
The information contained in the complaint must be kept confidential. The party filing the due process complaint must provide a copy to the other party and forward a copy to the SEA. A party may not have a hearing on a due process complaint until the party, or the attorney representing the party, files a due process complaint that meets these requirements.
An LEA has specific, time-sensitive responsibilities to carry out when it receives a due process complaint. For example, within 15 days, the LEA must convene a resolution meeting (unless the parties agree to use mediation or waive the resolution meeting). The purpose of the meeting is to give the parties the opportunity to resolve the issues in the due process complaint without holding a due process hearing.
If the resolution process does not succeed in resolving the dispute, the parties process to a due process hearing where an impartial, trained hearing officer hears the evidence and issues a hearing decision.
The Due Process Hearing
During this hearing, each party has the opportunity to present their views in a formal legal setting, using witnesses, testimony, documents, and legal arguments that they believe are important for the hearing officer to consider. Since the due process hearing is a legal proceeding, a party will often choose to be represented by an attorney.
Within 45 days of the resolution period expiring, a final decision must be reached in the hearing and a copy of that decision mailed to each of the parties, unless the hearing officer grants a specific extension of this time period at the request of either party.
If the hearing officer’s decision is not appealed, it is final. The LEA must implement the decision as soon as possible.
Office of Legal Services, Special Education Due Process Hearing Program
The TEA Office of Legal Services oversees the Special Education Due Process Hearing program. You can find information about the special education due process hearing program at https://tea.texas.gov/…/…_Special_Education_Due_Process_Hearing_Program/