Due Process Resolution Session Guidelines
The Individuals with Disabilities Education Improvement Act (IDEA 2004) and its final Part B Implementing Regulations describe how disagreement about special education services between parents and educators may be resolved.
With the IDEA 2004, Congress recognized the need to provide additional opportunities for early dispute resolution. The resolution process was added as another way parents and educators can work out their differences whenever a parent has filed a request for a due process hearing.
This guide will help parents and educators have a better understanding of the resolution session, one of the ways in which special education disputes can be resolved.
- A resolution session is a new conflict resolution process established under IDEA 2004.
- A resolution session must be held within 15 calendar days of the School Administrative Unit’s (SAU’s) receipt of notice of a due process hearing request by the parents. Parents must participate in the resolution session unless they and the SAU agree in writing to waive the session or agree to use the mediation process instead.
- The purpose of the resolution session is for the parents to discuss the due process hearing and supporting facts so that the SAU has the opportunity to resolve the dispute. A resolution session gives the parents and the SAU a chance to work together to avoid a due process hearing.
- The parents and the SAU determine which members of the Individualized Education Program (IEP) team will attend the resolution session. Participants include the parents, the SAU representative who can make decisions on behalf of the school, and any IEP team member who has relevant information about the issues that are being discussed.
- School districts may not bring an attorney to the resolution session unless the parents bring an attorney.
Benefits of Participating in a Resolution Session:
- It potentially allows the parties to avoid the time and expense of a due process hearing.
- It provides an additional opportunity to talk things over.
- It is often less adversarial than a due process hearing.
- It offers an opportunity to develop a mutually agreeable solution that is legally binding and enforceable in a complaint investigation or in a court.
- It offers the possibility of repairing communications and relationships.
- SAU attorneys are present only if the parents have an attorney in attendance.
- The SAU representative in the session has decision-making authority
- It offers an opportunity for either the SAU or the parents to withdraw the resolution agreement within three business days of the agreement’s execution.
Concerns About the Resolution Session:
- Going unprepared reduces the chance of a successful resolution session
- The session and preparations can be emotionally demanding, but not as much as a due process hearing.
- There is no guarantee that an agreement will be reached.
- Confidentiality of discussions is not protected in the same way that it is in the mediation process.
Frequently Asked Questions about Resolution Sessions:
Is there a required agenda for a resolution session?
No, however, this is an opportunity to discuss the concerns raised by the parents in a due process hearing request and how those concerns might be addressed. The session is more likely to result in an agreement if both parties
listen carefully to each other.
How can parents and SAUs prepare for the resolution session?
IDEA 2004 does not address this issue. However, the following tips may be helpful for preparation.
Who pays for the resolution session?
There is no cost to parents. It is the SAU’s responsibility to convene the resolution session. Unless an attorney is involved, the only cost for parents is the time to prepare and participate.
What if the agreement isn’t followed?
Either the parents or the SAU can withdraw from any agreement that is reached at the resolution session within three business days of the agreement’s execution. If the SAU or parent does not withdraw from the agreement during that period, it becomes legally binding. The agreement can be enforced in a complaint investigation or in court.
What happens if you do not reach an agreement in the resolution session?
If the parents and the SAU do not come to resolution, either party may proceed to a due process hearing.
Who can attend the resolution session?
The parents and any IEP team members who have specific knowledge of the facts in the due process hearing and the SAU representative who has decision-making authority may attend the resolution session. The parents and the SAU decide who should participate. Attorneys from the SAU may attend only if the parents bring their attorney to the session. It may be appropriate to have the child attend the session. A private or Disability Rights Center advocate may be able to help the parent with the preparations for the resolution session.
Are resolution sessions confidential?
There is no legal requirement to keep discussions in the resolution session confidential. However, the confidentiality provisions in the IDEA Part B regulations and the Family Educational Rights and Privacy Act (FERPA) and its regulations continue to apply. The parents and the SAU may wish to consider signing a confidentiality agreement at the beginning of the session.
Both parents and SAUs should:
- Write a summary that identifies the issues of concern and includes ideas and possible solutions to resolve the situation.
- Organize documents, writing pertinent dates and notes on them. Bring the supporting documents to the session.
- Anticipate questions that might be asked. Think through and write down possible responses.
- Identify sections of the law or final regulations that are at issue.
- Practice sharing issues with an advocate, a family member, or a friend before going to the resolution session
- Call Maine’s Disability Rights Center (DRC) and ask to talk with an advocate (1-800-452-1948; 626-2774).
- Think about how to deal with emotions during the session. Remain positive and try to minimize thoughts of past problems, worst fears, and other negatives.
- Set up the session space so it is comfortable and conducive to discussion.
- Stay centered on the child and stay focused on generative solutions.
- Be clear about goals and objectives.
- Review the student’s Individualized Education Program (IEP) and Evaluation Report.
- Communicate effectively with the session participants: listen, ask questions, clarify statements.
- Present options in a collaborative way.