November/December 2017

Courtney N. Stillman is an attorney with Hauser Izzo, LLC.

Most of the time school professionals and parents work together collaboratively and agree on the educational needs of students. However, at times, parents and schools have significantly different views about what are appropriate educational services for students with disabilities. School board members play an important role in special education disputes, by deciding whether to negotiate settlements, whether to continue through due process hearings, and in setting district policies regarding special education programing. This article provides an overview of the special education dispute process.

Basic special education legal concepts

There are four basic concepts of the Individuals with Disabilities Education Act (IDEA), from which special education disputes usually arise, including: the school district’s “Child Find” responsibility; the requirement to provide students with disabilities a Free Appropriate Public Education (FAPE); the offer of FAPE through an Individualized Education Program (IEP); and responsibility to educate students with disabilities in the Least Restrictive Environment (LRE).

Child Find — The school district has the responsibility to identify students who have a disability and who may need special education. Teachers, administrators, and other school personnel should refer for a special education evaluation any student who is struggling academically, behaviorally, or in other ways that affect his or her educational performance after general education interventions have not been successful.

Schools should have procedures in place for school personnel to make these referrals. After referral, the school team meets to determine what assessments of the student are needed and the team meets again after testing is complete to determine the student’s eligibility for special education services. If the school fails to identify a student with a disability, the student’s parent can file a Due Process Complaint Notice (DPCN), or hearing request, to seek compensatory educational services to make up for the time during which the student was not identified and consequently was not receiving needed services.

Free Appropriate Public Education — A student with a disability is entitled to a FAPE. FAPE requires that the school follow various procedural requirements, including, but not limited to the school providing notice to the parent of meetings and decisions concerning the student, obtaining consent for evaluations and initial placement in special education and allowing parents to meaningfully participate in decision making that concerns planning for their child. FAPE also requires that the school team, including the child’s parent, develop an IEP for the student that is appropriately ambitious in light of the student’s circumstances and that is reasonably calculated to allow the student to make educational progress. The IEP includes goals for the student based on his or her present levels, educational and therapeutic services, based on the student’s needs, accommodations and modification and a determination of an appropriate program in which to implement the IEP. A parent may file a DPCN if the parent disagrees with any part of the IEP, such as the goals, the nature of, or amount of services or the placement in which the services are provided.

Individualized Education Programs — The educational program for a student with a disability is set forth in an IEP that is developed by the school team and parent on at least an annual basis. The IEP establishes goals and objectives to address the educational needs that arise from the student’s disability. Services needed for the student to achieve the goals are specified in the IEP, as are the accommodations, modifications, and placement in which to deliver services. The IEP may also include behavioral interventions; assistive technology; and, when a student with a disability reaches age 14 years, six months, transition services to prepare the student for life after high school. The IEP can be an extensive document and parents may request a special education due process hearing to dispute all or any component of the IEP.

Least Restrictive Environment — The purpose of IDEA is to provide students with disabilities with access to the general education curriculum. The school district is required to educate students with disabilities with their nondisabled peers to the greatest extent possible. Disputes may arise that lead to the parent filing a DPCN over what is the LRE in which the student can make appropriate progress. Some parents want their child in an inclusive setting while other parents believe their child will make more progress in a segregated setting that educates only students with disabilities. The placement in which the student receives special education services may be the subject of significant dispute.

Due process complaint notices

When there is a dispute over a student’s eligibility for a receipt of special education, either parent or a school district may file a Due Process Complaint Notice.

The DPCN must provide identifying information about the student, facts describing the dispute, and a proposed resolution. The school district has a burden to produce evidence that it is providing the student a FAPE. Whoever files the DPCN, the school or the parent, has the burden of proof to persuade the hearing officer that their view of the student’s needs provides FAPE in the LRE.

A parent seeking a special education due process hearing must send a DPCN to the superintendent of the school district. Upon the district’s receipt of the DPCN, certain timelines begin running for sending the DPCN to the Illinois State Board of Education (ISBE) for appointment of an impartial hearing officer, for conducting a resolution session, for responding to the DPCN, and for conducting the hearing.

The district must send the DPCN to ISBE and request appointment of an impartial hearing officer within five days of receipt of the DPCN. When the hearing officer is appointed, both the school district and parent have five days to request a substitution of hearing officer. A substitution may be requested, for example, if the school or parent believe, based on the hearing officer’s previous decisions or background, that the hearing officer may be undesirable for the case.

Mandatory settlement process

The IDEA contemplates a cooperative process in which schools and parents work together in the best educational interest of the child with a disability. In furtherance of this collaborative goal, unless both the school and the parent refuse the opportunity to attempt to resolve their dispute, the parent and school representatives are required to meet in either a resolution session or a mediation to attempt to resolve the disagreement set forth in the DPCN.

If the school and parent opt for a resolution session, they meet without a third-party mediator, to review the issues described in the DPCN. If the parent does not bring an attorney to the resolution meeting, the school may not bring an attorney either.

If the school and parent reach an agreement, it is written and signed, but either the school or the parent can void the agreement within three business days. Discussion held at the meeting is not confidential and may be shared with the hearing officer at the hearing. The resolution session must be held within 15 days of the school receiving the DPCN, unless both the parent and school agree to mediation or agree to go to hearing without attempting settlement.

If the school and parent instead opt for a mediation, ISBE appoints a third-party mediator to help the parent and school representatives with settlement discussions. A school may bring an attorney to the mediation even if the parent does not bring an attorney. The parties and mediator meet on a mutually agreeable date. If agreement is reached, it is written and is enforceable in court. All settlement discussion at the mediation is confidential and may not be referenced at a due process hearing.

Administrative due process hearing

At the hearing, the school and the parent have an opportunity to provide testimony and documents in support of their posit ion concerning the issues stated in the DPCN. Each party may ask the other party’s witnesses questions and the hearing officer may also ask questions. The impartial hearing officer then has 10 days after the hearing concludes to prepare a written decision and order. Within five days of receiving the decision, either or both the school and the parent may ask the hearing officer for clarification of portions of the decision that are unclear. If the hearing officer orders the school district to take any action as a result of the hearing, the district must send ISBE proof of compliance. The party that is unsuccessful at the hearing may appeal the hearing officer’s decision in state or federal court within 120 days of receiving the decision.

Award of attorneys’ fees to parents

A school district should consider various factors, such as its short- and long-term relationship with a student’s family, precedence, and the best interests of the student when deciding whether to proceed with a due process hearing. One consideration is that parents who are represented by an attorney and who prevail on any issue at a due process hearing are entitled to receive at least a portion of their attorney fees from the school.

There is no parallel right of the school to receive payment of fees from parents. Typically, if a parent wins at hearing, the school and parent will negotiate payment of attorneys’ fees. If the amount cannot be negotiated, the parent may file a fee petition in state or federal court for the judge to determine what payment of fees is reasonable.

“Stay put” considerations

During the due process proceedings, IDEA mandates that the student remain in his or her “then current” educational placement, which is typically the last educational program to which both the school and parent agreed.

If a school changes a student’s IEP and the parent requests a mediation or a due process hearing within 10 days of the school’s decision, the school cannot implement the change and the student’s program must remain as it was before the proposed change, unless the school and parent agree otherwise. If the requested mediation occurs and is unsuccessful, the parent has an additional 10 days to request a hearing and maintain the stay put.

The stay put may be problematic if the student has behavioral difficulties or other problems that make the student’s current setting inappropriate. Although the IDEA describes due process as a 45-day process, in fact, considering settlement negotiations, the possibility of evaluations, and other delays, due process proceedings may last for a significant part of the school year.

The role of the board of education

Although school board members do not make decisions about individual students’ programs or directly participate in dispute resolution with parents, the board of education plays its role in setting district policies and procedures concerning the provision of FAPE in the LRE. Board members should be apprised of special education disputes in the district and be part of the decision-making concerning the settlement or litigation of these disputes.