Why Resolution Sessions are Important According to the IDEA
When school districts or local educational agencies (LEA) and parents disagree about whether a particular student’s individualized education program (IEP) is appropriate, a number of things can occur.
If the dispute is unable to be resolved through the IEP process, the parents can file a due process complaint against the school district seeking an order from an administrative law judge ordering the school district to provide certain remedies; or the district can file a due process complaint against the parents seeking an order from an administrative law judge determining that the district’s offer of a free and appropriate public education (FAPE) was appropriate.
When parents file a due process complaint, the first step toward resolving the dispute(s) in the complaint is for the respondent district to convene a resolution session. The Individuals with Disabilities Education Act (IDEA) make the resolution meeting process a prerequisite to holding a due process hearing with few exceptions.
An LEA or school district is required to convene a meeting with the student’s educational rights holder (ERH)/parents and the relevant members of the IEP team within 15 days of receiving notice of the Student’s complaint. (20 U.S.C. § 1415(f)(1)(B)(i)(I); 34 C.F.R. § 300.510(a)(1).)
The resolution session need not be held if it is waived by both parties in writing or the parties agree to use mediation. (34 C.F.R. § 300.510(a)(3).) If the parents do not participate in the resolution session, and it has not been otherwise waived by the parties, a due process hearing shall not take place until a resolution session is held. (34 C.F.R. § 300.510(b)(3).)
If the LEA is unable to obtain the participation of the parent in the resolution meeting after reasonable efforts have been made and documented, the LEA may, at the conclusion of the 30-day period, request that a hearing officer dismiss the complaint. (34 C.F.R. §300.510(b)(4).) A school district, or local education agency, must convene a meeting to discuss the issues raised in a due process complaint in order to attempt to resolve the dispute. (34 C.F.R. § 300.510 (a)(1),(2).) This meeting is commonly known as a resolution session.
Thus, if either the school district or parent is unwilling to waive the resolution meeting, it must occur prior to a due process hearing taking place. In many cases, the parties agree in writing to waive the meeting. In this instance, the case may resolve at a mediation where the parties meet with an administrative law judge acts as an impartial mediator between the parties. It is understood that in California approximately 97% of due process cases settle at such mediations. When the district and parents have very differing opinions of what constitutes a FAPE for the particular student, it only makes sense that an impartial mediator who is well versed in special education law can be an extremely valuable asset in assisting the parties to come together and form an agreement. Thus, it can be difficult to want to participate in a resolution session where essentially the same parties are involved and there is no neutral to assist with the parties coming together.
While it is our experience that very few cases actually settle at resolution session meetings, it is important for parents to at least participate in the meeting if the district refuses to waive it. Because the Individuals with Disabilities Education Act (IDEA) very specifically demands that a resolution session held (with few exceptions), in order to move forward in the progression toward a due process hearing, it is important for parents to at least try to resolve the dispute via such a meeting.
If districts refuse to waive the meeting and parents refuse to participate, the law supports districts moving to have the parent’s complaint dismissed. In this case, if the district prevails on their motion to dismiss, the parents are back to square one and would theoretically need to re-file their due process complaint. Logically, the timelines would then be reset and all the while the child may not be receiving their right to a FAPE, defeating the purpose of the due process complaint in the first place.
–Elizabeth Curtis, October 4, 2017