IDEA Compliance, Dispute Resolution, & ODE Obligations

ODE Legal Unit

Videoconference

November 2, 2007

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Agenda

IntroductionIntroduction of presentersOverview of topics

Policies & ProceduresMediation & Resolution SessionsComplaint Investigation

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Policies & Procedures

IDEA statute is foundation of everything in special ed

Regulations, rules, & local district policies & procedures are effort to ensure implementation of law with emphasis on policy purposes.

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Where do Policies & Procedures Come From?

IDEA (USC)Federal regulations (CFR)

State statute (ORS)State administrative rules (OAR)

District policies & procedures

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Policies & Procedures

ODE has affirmative duty to enforce IDEA. P&Ps contribute to this effort

by simplifying language

by focusing on districts’ IDEA obligations—not everything in IDEA appears in P&Ps.

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Policies & Procedures

Which P&Ps?

ODE

OSBA

Modification of P&Ps?

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Policies & Procedures

Adoption & Submission Process

Policies & Procedures

References (optional)

Directions

Assurances

www.ode.state.or.us/search/results/?id=123

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Disagreement Happens

Good faith adherence to P&Ps is no guarantee of peace and harmony; disagreements will arise!

IDEA includes a variety of mechanisms for dispute resolution.

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Different Tools for Different Disputes

IDEA Dispute resolution not a continuum of increasingly formal or adversarial processes.

Different DR mechanisms serve different regulatory and practical functions.

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Dispute Resolution as Procedural SafeguardProcedural safeguards DR—mediation, due process hearing*, resolution session.

Primary purpose of these processes is to assist parties to resolve their differences.* DP hearings are beyond scope of this discussion.

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Dispute Resolution as Compliance ReviewGeneral supervision DR—complaint investigation is one of the mechanism ODED can use to ensure compliance with IDEA (as is SPR&I). Individual dispute resolution is a secondary purpose and positive consequence, but it is not the primary purpose.

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Mediation—Benefits

No special conditions needed to mediate.

Can be used at any point there is disagreement about any aspect of special education.

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Mediation—Benefits

Proactive strategy to attempt resolution before a complaint or due process request is filed.

Can deal with issues related to special education but outside of compliance issues.

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Mediation—Benefits

Opportunity for a “safe” way to hear each others concerns and come up with a plan to improve the current situation.

ODE pays!

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Reasons to Use Mediation

There is an impasse between parents and districts.

Outside mediator takes pressure off staff to be both facilitate ideas and be a member of the team.

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More Reasons to Mediate

Can improve relationships between the parties

Assists in mutual problem solving

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Example

SD team believes further evaluation is necessary to clarify student’s learning needs.

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Example

SD experiencing concerns about parent unannounced visits to schools and interactions between parent, staff and student. Concern that these negative interactions are leading to further decline in student behavior and progress.

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Example

District and parents having difficulties in communicating with each other about student progress. Parent expects certain information to be going home in student’s notebook. District thinks parent is requesting more information than they think is needed for the situation.

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How to Request Mediation

You must be a party to the mediation to make the request for mediation.

Upon receipt of the request, the other party will be notified by ODE.

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How to Request Mediation

Parents or educators may request mediation by completing the Mediation Request Form, at the back of the Mediation Handbook or as a separate form found under the Mediation section of the ODE website.http://www.ode.state.or.us/search/page/?id=1369

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Resolution Sessions

The purpose of the Resolution Session is to resolve the issues in a pending due process hearing.It is the first step to resolving the due process dispute.District/Program convenes meeting to review the matters outlined in the hearing request.

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Resolution Session Benefits

Offers parties an opportunity to dodge the bullet of the most adversarial and expensive dispute resolution process—DP hearing.

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Resolution Session Benefits

As in mediation, the parties in resolution sessions retain control. At any point, they can find common ground, and the dispute ends.

ODE has no direct role.

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Resolution SessionWho’s Involved?

Parents and relevant members of the IEP team who have specific knowledge of the facts identified in the due process hearing requestA representative of the district/program who has decision-making authority on behalf of the district/program

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Resolution Session—Who’s Involved?

The district/program may not have an attorney present unless the parent is accompanied by an attorney

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Dispute Resolution & ODEPractical impact of regulatory structure of dispute resolution minimal for districts but critical for ODE. ODE staff have little or no direct involvement in mediation and resolution sessions but intense ongoing involvement with complaint investigations and corrective action.

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Complaint Investigation—Purposes“[T]he broad scope of . . . complaint procedures . . . is critical to each State’s exercise of its general supervision responsibilities. The complaint procedures provide . . . an important means of ensuring that the educational needs of CWDs are met and provide the SEA with a powerful tool to identify and correct noncompliance.”

Federal Register, August 14 2006, p.46601

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Complaint Investigations Allege IDEA Violations

A complaint investigation only looks at allegations, which must be supported by specific facts, that a district is violating or has violated the IDEA.

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Complaint Investigation—Procedural & Substantive“[A]n SEA, in resolving a complaint challenging the appropriateness of a child’s educational program or services or the provision of FAPE, should not only determine whether the district has followed the required procedures to reach that determination, but also whether the district has reached a decision that is consistent with the [IDEA] in light of the individual child’s abilities and needs.”

Federal Register, August 14 2006, p.46601

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Complaint Investigation—Individual & Systemic“[OSEP] views the State complaint procedures as an important tool for a State to use to fulfill its general supervision responsibilities to monitor implementation of [IDEA] requirements. . . . These responsibilities extend to both systemic and child-specific issues.”

OSERS Memo, January 1 2007, 47 IDELR 195

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Complaint Investigation—Systemic Example“An example . . . could include a complaint alleging that [a district] has a policy, practice, or procedure that results in not providing occupational therapy to children in a specific disability category, which if true, would be inconsistent with the requirements of IDEA.”

OSERS Memo, January 1 2007, 47 IDELR 195

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Who Can Request a Complaint Investigation?Any person can request a complaint investigation. It need not be a parent in a dispute with the district—although it typically is.

Could be staff.

Could be community member.

Could be organization.

Could be out of state complainant.

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Complainant Need Not Have IDEA Expertise

ODE does not require or expect complainant (especially parents) to have expertise in the law. ODE has obligation to identify potential violations from text of complaint.

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Complaint Investigation Statute of Limitations

Even when complaint alleges IDEA violations supported by facts, ODE will not investigate if relevant District acts or failures to act occurred more than one year before filing of complaint.

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Complaint Investigation– No Double-Dipping!

ODE will not re-investigate allegations addressed in an earlier investigation or in a due process hearing, unless the same actions or inactions recur or continue after issuance of the earlier order.

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Double-Dipping—No!Follow-Through—Yes!

However, a person (usually a parent) may file a new complaint alleging that a district has not satisfied its obligations under a DP hearing order.

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Complaint Investigation Process & Sequence

Structure is flexible. District & complainant may:

negotiate a settlement informally

agree to mediate

agree to a stipulated corrective action (more later!)

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Complaint Investigation Process & Sequence

Most often, investigation goes forward.

Investigation frequently requires interviews.

Investigator gathers factual information from complainant and district and then applies relevant law to facts.

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Complaint Investigation— Short-CircuitDuring the investigation, if ODE finds a strong likelihood that the district has significantly breached the IDEA and that delay may cause irreparable harm, ODE may order interim relief—some kind of corrective action—pending completion of the investigation.

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Complaint Investigation Process & Sequence

In collaboration with investigator, ODE determines whether violation(s) occurred.

If uncorrected violations found, ODE orders corrective action to

compensate complainant

correct non-compliance

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Complaint Order

Allegations

Procedural history

Findings of fact

Discussion and conclusions

Corrective action, if required

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Corrective Action

ODE has discretion to:fashion equitable remedies adequate to compensate students when violations constitute a denial of FAPE

order correction of district practices beyond the specifics of the investigated case.

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Corrective Action“In light of the SEA’s general supervisory authority . . ., we believe the SEA should have broad flexibility to determine the appropriate remedy or corrective action necessary to resolve a complaint . . . including awarding monetary reimbursement and compensatory services.”

Federal Register, August 14 2006, p.46602