required in a due process complaint includes the following:
• Name of the child
• Address of the residence of the child
• Name of the school the child is attending
• A description of the nature of the problem of the child relating to the proposed or refused initiation or change, including facts relating to the problem
• A proposed resolution of the problem to the extent known and available to the party at the time (Assistance to States for the Education of Children With Disabilities, 2010e)
If the parents and school district are unable to resolve the issue through an alternative dispute resolution process within thirty days of filing the request for a hearing, a forty-five-day due process hearing timeline begins. This means that a due process hearing must be held and a final decision issued within forty-five calendar days of the end of a resolution period. Either the parents or the school district has the right to appeal a final due process decision to state superior or federal district court within ninety days of the decision.
Alternative Dispute Resolutions
IDEA includes provisions to help parties reach an agreement through mediation or a resolution meeting in hopes of avoiding a due process hearing. The 2004 amendments to IDEA added a resolution process that schools must adhere to after receipt of a due process complaint. Specifically, IDEA now states that within fifteen days of receiving a due process complaint, the school district is required to schedule a resolution meeting with the parents and selected IEP team members unless the parents and school district agree in writing to waive the meeting or agree to participate in mediation instead of a resolution meeting. School districts are not permitted to bring a lawyer to the resolution meeting unless the parents of the student with a disability bring a lawyer. It should be noted that while a resolution meeting is now required when a parent submits a due process complaint, if the complaint is initiated and filed by the school district, IDEA does not require a resolution meeting prior to a due process hearing.
The purpose of the resolution meeting is for the school and parents to have an opportunity to meet, discuss the complaint, and resolve the problem without having to resort to a due process hearing. IDEA explicitly states that participants in the resolution meeting must include IEP team members who have information about the due process complaint and who were selected, in agreement, by the parents and the school or school district. Once the meeting is scheduled, if the parents do not attend, then the school has the right to ask the hearing officer to dismiss the due process complaint.
IDEA also requires schools and school districts to develop and make available processes to provide mediation to parents as an alternative to a due process hearing. Mediation is voluntary and provided at no cost to the parents. Parents may opt for mediation instead of a resolution meeting if they prefer that the process be facilitated by an objective third-party individual. A mediator is assigned to each case by the state to guide effective communication between the parents and the school and assist them in the process of resolving the dispute by facilitating a mediation meeting. The state is required by IDEA to maintain a current list of qualified persons that can serve as mediators. Mediators must have expertise in IDEA’s statutes and regulations as well as individualized instruction, special education, and related services.
The collaborative approach of mediation is intended to encourage parents and the school system to work together to seek solutions to the issues in the dispute. The purpose of mediation is to discuss the issues and explore the options in an attempt to resolve the dispute. The use of mediation reduces time and other resources spent in litigation. In both the resolution meeting and the mediation meeting, if a solution to the problem is agreed upon by the parents and the school, all participants are required to sign a legally binding document which states the problem and the agreed-upon solution.
However, participation in the mediation process is optional; parents have the right to refuse mediation and can opt to move directly to a due process hearing. Furthermore, principals cannot use mediation to stall or delay a parent’s due process request. IDEA sets specific timelines governing the scheduling and decision making surrounding mediation to ensure that parents’ concerns are addressed in a timely fashion. If the parent(s) agree to the process of mediation, a mediation conference must be scheduled within fifteen calendar days of receiving the due process complaint, and a resolution that the parents and school agree to must be signed within thirty days of receiving the due process complaint.
Expedited Due Process
Parents and school districts have the right to request an expedited due process hearing when the dispute results from a disciplinary action and concerns a student’s placement or determination of manifestation. Either the parent or the school district can file the expedited due process complaint and request. Regardless of who brings the complaint, the school system is responsible for scheduling the due process hearing and ensuring that all expedited timelines are met. Once the expedited due process complaint is received, the school is responsible for convening a resolution meeting within seven days unless the parents and the school agree to waive the resolution meeting. If the dispute cannot be resolved in the resolution meeting, the expedited hearing must occur within twenty school days of the request, and an administrative law judge must issue a decision within ten school days after the hearing. Although the timeline is considerably shortened, IDEA mandates that the expedited hearing maintain the same requirements as stipulated for general due process hearings such as a right to counsel and presentation of evidence with the opportunity to cross examine. IDEA does give states the authority to develop and implement alternate timelines and rules for expedited due process complaints and hearings. Therefore, it is important to ensure that you are familiar with your state procedures as well as the requirements specified in IDEA. Generally, state guidelines can be located on your state’s education website.
Students With Disabilities and No Child Left Behind
In addition to IDEA, there are specific requirements pertaining to students with disabilities in the No Child Left Behind Act. Together, NCLB and IDEA define how students with disabilities are to be assessed and how schools will be held accountable for their performance and educational improvement. NCLB also specifies that all students, including those with disabilities, are to access and be held accountable for achieving the same grade-level content standards as all other students in the building. The expectation that students with disabilities should be fully included in grade-level state standards is designed to eliminate some historical problems in special education, including lower expectations for student learning, isolated IEP goals, and special education instruction focused primarily on low-level skills (McLaughlin, 2009).
Both IDEA and NCLB policies require that all students with disabilities are included in statewide assessments and that their progress in achievement not only be reported as a separate subgroup but also be included in the schoolwide calculations. While IDEA and NCLB both demand that all students with disabilities be included in statewide assessments, the laws still recognize the importance of individualization, a cornerstone in special education, by providing several ways for students with disabilities to participate in the statewide assessments. A student’s IEP is expected to reflect grade-level content standards, but certain students may be assessed against different achievement standards. There are five ways that a student with a disability may be assessed: (1) regular assessment without an accommodation, (2) regular assessment with accommodations, (3) alternate assessment based on grade-level achievement standards, (4) alternate assessment based on modified achievement standards, and (5) alternate assessment based on alternate achievement standards (see chapter 4 for more detailed information about accommodations and modifications of assessments).
Alternate achievement standards only apply to students
