Due Process & Complaints: An Overview of Dispute Resolution in Illinois

Due Process & Complaints: An Overview of Dispute Resolution in Illinois Marcia Kelley, Complaint Coordinator Andy Eulass, Due Process Coordinator Illinois State Board of Education

Dispute Resolution • When disputes arise between parents and school districts, the parties have three possible ways to resolve the dispute • Mediation • State Complaints • Due Process Hearings

Dispute Resolution • Each separate resolution mechanism has certain advantages and disadvantages in terms of time, effort and financial cost • Think carefully about the time, effort and cost associated with each mechanism before you decide to initiate it

First Steps: Do I Need to Engage in a Formal Process at All? • Before resorting to any of the formal processes, ask yourself some questions • Do you believe the parent understands your position and the rationale for it? • Do you understand fully the parents’ position? • Are there other options that you haven’t discussed (or indeed even thought of)?

Facts About IL Dispute Resolution Statistics for 2007-08 School Year

Mediation • State-sponsored process designed to allow parties to resolve disputes through voluntary agreements • Agreements are put in writing and signed by the parties • Can be done regardless of whether due process or a complaint is pending

Mediation • Both parties must agree to participate • Initiated by as little as a phone call to the ISBE • ISBE mediator is used to facilitate agreements between parties • Group discussions and “caucusing”

Mediation • Can resolve issues before they go to due process or complaint • Quick and inexpensive • Non-adversarial – parties agree because they want to agree • The agreement itself is enforceable • Voluntary – no means to compel the other side to do anything • Usually requires compromise – if you feel strongly that your position is the right one, you may need to prepare to modify it

State Complaints • Process designed to resolve allegations that the rights of one or more students (or their parents) with disabilities are being violated • A complaint can be filed by any one with knowledge of the issues • Complaints are made in writing and filed directly with the ISBE

State Complaints • An ISBE investigator may review documents, interview people and conduct any other appropriate investigation necessary to decide the issues in question • Decisions must be issued within 60 calendar days of the receipt of the complaint unless an extension of time is required because of compelling circumstances

State Complaints • Decisions will specify detailed findings of violations and specific corrective actions which the school district must complete to address the findings • No formal appeals are provided under complaint rules • If a due process request is pending, the complaint will be put on-hold during the hearing process • The complaint investigator must defer to the decision of the due process hearing officer

State Complaint • A parent may still file for due process after a complaint, but the decision of the investigator can be used as evidence at the due process hearing

Strengths Particularly useful when addressing systemic issues Often quicker than due process Usually far less costly than due process Can be filed by any person with concerns about special education Weaknesses Somewhat limited opportunities for you to make your case No appeals May compromise your due process request if you file for due process on the same issues later State Complaints

Due Process Hearing Requests • Due process hearings are designed to decide issues affecting the placement of individual children • The only parties entitled to file due process requests are parents/guardians, school districts or students 18 years of age or older • Results in a legally binding decision on both parties, unless the decision is changed or overturned on appeal

Due Process Hearing Requests • Parent requests may be filed based on any disagreement affecting any aspect of the student’s special education program • Parent requests must be in writing directed to the attention of the superintendent of the student’s home school district, setting forth the grounds for the request • Upon receipt of a parent request, the school district is responsible to convey the request to ISBE within five days of receipt

Due Process Hearing Requests • School district requests can be based on only three grounds: • Authorization to conduct a case study evaluation • Refusal to provide a school-financed independent evaluation • Authorization to place a student in an IAES

Due Process Hearing Requests • Hearing officers • Are of various backgrounds (lawyers, teachers, diagnosticians, school administrators) • Appointed by ISBE on a random basis • Cannot have had a former association with the school district • Each party has one no-questions-asked right to strike a hearing officer within five days of notification of the appointment

New Procedures: Resolution Sessions • Must occur within 15 days of receiving the hearing request • Cannot involve attorneys unless the parent brings one • Can result in a legally binding, written agreement that will resolve the hearing request

Due Process Hearing Requests • Pre-Hearing Conferences • Conducted by the hearing officer • Each side entitled to at least ten days’ notice • At the conference, each side is expected to provide to the hearing officer and opposing party: • List of witnesses who may be called by the party • List of documents the party may use as evidence at the hearing

Due Process Hearing Requests • Pre-Hearing Conferences (cont.) • Matters that are discussed in the conference: • Issues in dispute • The action(s) the parties want the hearing officer to order • Disputes concerning the witnesses and documents the opposing parties will use • Whether the parties will be using legal representatives or advocates at hearing • The scheduling of the hearing

Due Process Hearing Requests • The Hearing • Occurs no sooner than fourteen days following the pre-hearing conference • Five days in advance of the hearing, each party must disclose the documents and list of witnesses it intends to use at hearing • Who goes first? Depends on who initiated the request. • Witnesses (under oath) may be questioned, then cross-examined by the opposing party • A transcript of the hearing is maintained by a court reporter

Due Process Hearing Requests • Hearing Officer’s decision will be issued in writing to the parties within 10 days of the hearing • Each party has a right to seek “clarification” of any aspect of the decision from the hearing officer in writing within seven days of the decision

Due Process Hearing Request • The non-prevailing party has a right to seek an appeal of the decision in either State or Federal Court within 120 days of the date of the decision • The standard of review is to determine, “with due weight” given to the hearing officer’s decision, whether the hearing officer’s decision was appropriate under the circumstances

Due Process Hearing Requests • At the end of all proceedings, if the parent is the prevailing party, the parent has a right to seek recovery of attorneys fees from the district • The changing rules about attorneys fees and settlement agreements

Strengths Suited to issues for individual students Legally binding Appeal rights Allows for use of legal representatives or advocates Weaknesses Time consuming, especially with appeals Can be very costly Can be legally binding on you Can result in bad feelings Due Process Hearing Requests

ISBE Contacts(all can be reached at 217-782-5589) • Mediation: Sherry Colegrove, scolegro@isbe.net • Complaints: Marcia Kelley, mkelley@isbe.net • Due Process: Andy Eulass, aeulass@isbe.net

Due Process & Complaints: An Overview of Dispute Resolution in Illinois