Special Education Dispute Resolution under IDEA 2004 & IDEA Regulations September 2006

1. Special EducationDispute Resolution under IDEA 2004 & IDEA RegulationsSeptember 2006

2. Mediation34 CFR 300.506 Expanded: • Mediation available (at ODE expense) to resolve any special education dispute (not just if complaint or hearing filed) • Mediation agreement must be in writing and signed by the parent and agency representative • Agreement is legally binding and enforceable by any state court or federal district court • Mediation communications are confidential and may NOT be used as evidence in subsequent legal action

3. State complaints34 CFR 300.151-153 • Permits parties to agree to extend 60 day timeline for mediation or other ADR • Limits complaints to allegations of a violation not more than one year before the date that the complaint is filed • Complainant must file with school district and state • Commentary clarifies that complaints are not an “action or proceeding” & attorney fees are not available (change from current 9th Cir. Case law) • Sample form

4. Due Process Hearing Request34 CFR 300.507 & 508 • Parent or district may request a hearing • NEW: Hearing request sent to the District and State • Party requesting the hearing cannot raise issues not in hearing request unless the other party agrees • Request must include: • Child’s name & address (or contact info if homeless) • Child’s school • Description of nature of the problem relating to proposed or refused action & related facts • Proposed resolution (to extent known and available)

5. Due Process Hearing Request 34 CFR 300.507 & 508 • New two-year limit from when a parent or agency knew or should have known about the alleged violation (unless state law provides a different time limit). Oregon has a two year time limit. • Time limits do not apply if a parent cannot file due to • Specific misrepresentations that the District had resolved the issue; and • The District withheld information it was required under IDEA to provide to the parent.

6. Due Process Hearing Response34 CFR 300.508(e) & (f) Within 10 days: • Send any prior written notices that should have been sent regarding subject matter in due process hearing request • Send a response that specifically addresses the (other) issues raised in the due process hearing request

7. Sufficiency of DP Request34 CFR 300.507(d) 15 days: • Request presumed sufficient unless other party notifies ALJ that request does not meet requirements • ALJ has 5 days to determine “on face” whether request meets requirements • Party may amend with written consent of other party (time starts over) or ALJ allows (at least 5 days before hearing)

8. 15 days: Resolution meeting to discuss facts and resolution of issues in the hearing request. Parties may agree, in writing, to waive resolution meeting or to use mediation instead. Resolution session participants include Parents; Relevant IEP team members; and District representative with decision-making authority. May not include an attorney for the district unless parent’s attorney is present. Resolution Sessions34 CFR 300.510(a)

9. Resolution period34 CFR 300.510(b) General rule: 30 days (before 45 day hearing timeline) Exceptions: • Hearing timeline starts “next day” if: • Parties agree in writing to waive the resolution session • Parties try mediation or resolution session & agree in writing that no resolution is possible • Parties agree in writing to continue the mediation (more than 30 days) & then one or both parties withdraw from the mediation process • Hearing timeline delayed if parent fails to participate in resolution meeting (until meeting is held) & at end of 30 days, district may request dismissal • Hearing timeline may be accelerated if district does not hold or participate in resolution session as required

10. Resolution Agreement34 CFR 300.510(d) & (e) If agreement is reached to resolve the dispute at a resolution session, the parties execute a legally binding agreement that is signed by both the parents and a representative of the agency; and enforceable in state or federal court. If parties execute a written settlement agreement, a party may void the agreement within three business days of the agreement’s execution.

11. Right to Bring Civil Action;Limits Awards to Prevailing Party34 CFR 300.516 • A 90-day time limit to appeal hearing decision to court – Oregon adopted in ORS 343. • Attorneys’ fees for “resolution sessions” are not recoverable.

12. Attorney Fees34 CFR 300.517 • Public agencies may recover their attorneys’ fees from parents’ attorneys if the case was • Frivolous; • Unreasonable; or • Without foundation. • Public agencies may recover attorneys’ fees against the parents’ attorney or the parents if the case was presented for any improper purpose such as to • Harass; • Cause unnecessary delay; or • To needlessly increase the cost of litigation.