Due Process & Complaints: An Overview of Dispute Resolution in Illinois Marcia Kelley, Complaint...
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Transcript of Due Process & Complaints: An Overview of Dispute Resolution in Illinois Marcia Kelley, Complaint...
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
1. Mediation
2. State Complaints
3. 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 Complaints DP
Total # of Cases 111 397
Total Completed 92 359(includes 47
hearings)
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
State Complaints
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
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:
1. Authorization to conduct a case study evaluation
2. Refusal to provide a school-financed independent evaluation
3. 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
Due Process Hearing Requests
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
ISBE Contacts(all can be reached at 217-782-5589)
Mediation: Sherry Colegrove, [email protected]
Complaints: Marcia Kelley, [email protected]
Due Process: Andy Eulass, [email protected]