As noted previously in the Formal Mediation blog, the Due Process Hearing can potentially be a very intimidating and emotionally draining process given the costs, the amount of time and resources necessary to prepare a case, and the anxiety over the hearing itself, from cross-examination to limitations to how one presents evidence to awaiting an impartial hearing officer’s decision with no control on his or her thought process beyond your arguments.
We had discussed earlier how an attempt at Formal Mediation can help work out these disputes with the school district over a child’s special education and related services through a mediated conversation by which both come to an understanding. Due Process hearings are reserved for those disputes that can’t be resolved or are unable to be resolved by such mediation or informal meetings.
Yet even when a due process complaint is filed, this does not erase all opportunities at resolving the issue in a manner amicable to both sides with minimal stress. As part of the Due Process Hearing process, parents are still allotted a certain amount of time after filing by which parents can try to come to an understanding with the School District and resolve the dispute between booth factions regarding a child’s special education. This is what is known as a Resolution Process.
Under Section 300.510 of the Code of Federal Regulations, once a local educational agency (LEA) (in this case, the school district) has received a due process complaint and submitted it to the Illinois State Board of Education (ISBE) to select a hearing officer, they are given 30 days by which to resolve the issue to the parent’s satisfaction. §300.510(b)(1). Both the LEA and the parents have 15 days from the LEA receiving the due process complaint by which to meet (along with key members of the child’s Individualized Education Program (IEP) team appraised of the facts in question) to discuss the complaint issues and come to resolve it without having to go to a formal hearing. §300.510(a)(1)(2). Attorneys are not required to be present unless if the parent brings an attorney, in which case the LEA may bring one as well.
If the resolution process results in a solution, then under §300.510(d)(3) of the Code of Federal Regulations, the parent and LEA must enter into a written and legally binding agreement which must be signed by both parties, that is enforceable in any state court of competent jurisdiction or a federal district court, and which may be voided by either party within three business days of the day it was signed.
The Resolution Process, although a required part of the Due Process hearing, is still conditionally optional. If both parties jointly and timely waive the resolution process in writing, they may proceed to a due process hearing. Failure to participate in the Resolution Process or to waive it on time can in writing can result in potential dismissal of a parent(s)’s due process complaint by hearing officer on request of the LEA, if parent fails to participate in the Resolution Process. Or parents seeking the intervention of the hearing officer to begin the timeline for a due process hearing if the LEA fails to schedule a resolution meeting.
Although waivable, a Resolution Process is a pathway many parents should seriously consider taking after filing their due process complaints. The costs, resources and emotional pressure of a due process hearing are often intimidating for many parents who are simply seeking a change or lack thereof to their child’s special education services without what appears to be an administrative trial. Trying to resolve the issue with the School District in a resolution process helps parents avoid the costs involved in preparing for due process hearings and allows them to focus on working with the school district to get a solution that meets both sides’ needs rather than an acrimonious court battle.
It is also far less expensive than doing the full due process hearing and can allow a parent a final opportunity to present their side in a conversation with the school district in order to work with them for a solution rather than pay someone to do discovery. Finally, by virtue of its dialogue-oriented nature, parents feel less pressured to answer in a way to fit their case, allowing them to be more open about what they’re looking for as opposed to the restrictions of a formal legal setting in which due process hearings take place.
Not every dispute with a school district can be resolved by dialogue and the law recognizes that. Hence the need for due process hearings to ascertain the rights of the respective parties. But by providing a 30-day resolution process in the rules for Due Process Hearings, the Code of Federal Regulations provides parents’ a final opportunity to consider their options and get a chance to attempt to come to a solution without having to deal with extra costs and stress. Whether it works or not or whether it’s even desired or not, it’s a pathway that can potentially spare parents much emotional turmoil and help keep a steady educational experience for children. Parents should not avoid it without good reason.
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