II. DUE PROCESS
1. CCD opposes voluntary binding arbitration (House bill Sec. 615(e)). The Senate language does not include voluntary binding arbitration.
Rationale: The IDEA already contains adequate dispute resolution provisions, including mediation. Binding arbitration could easily be subject to abuse, especially if parents do not have counsel or, as in the House bill, could not be compensated for attorneys’ fees that accrue during arbitration.
2. CCD supports the amendments in both bills to Sec. 615(d)(1)(a) requiring provision of rights upon parental request for evaluation. CCD prefers the House language requiring that parents receive the statement of their rights at the beginning of each school year. CCD strongly opposes the House provisions deleting the requirement to provide a rights statement when the parent requests a hearing under Sec. 615(b)(6) and allowing school districts to provide a “description” rather than a “full explanation” of the enumerated procedural safeguards. Current law is preferable in this case. CCD also strongly opposes the elimination by both bills of the right to receive a rights statement when notified of IEP meetings and re-evaluations. Finally, CCD fails to comprehend why the House bill omits notice of any applicable statute of limitations and applauds the Senate for including such notice. (Sec. 615(d))
Rationale: In order to fully participate in the entire process, parents must be notified of their rights whenever they may need to exercise those rights. The potential of parent being unaware of their rights can only serve to increase litigation.
3. CCD strongly opposes the House provision allowing state governors to set attorneys’ fees (Sec. 615(i)(2)(c)). The proposed Senate language regarding attorney fees is acceptable.
Rationale: No other fee shifting statute contains such a provision nor does it make sense to allow the ultimate defendants who lose to say how much the winners’ attorneys should be paid. CCD believes further that the current IDEA fee provisions were the result of two long years of negotiation from 1984-1986 and constitute and fair, workable, and working compromise especially in light of the 1997 amendments prohibiting fee awards for IEP meetings and giving states the option to not pay fees for mediation.
4. CCD strongly opposes the addition of mandatory dispute resolution sessions prior to due process hearings, as are included in both the House and Senate bills (Sec. 615(f)(1)(B). Current law does not require these sessions.
Rationale: School districts are required by law and regulations to include personnel with decision-making authority at IEP meetings. See 20 U.S.C. Sec. (d)(1)(B)(iv); 34 C.F.R. Sec. 300.344(a)(4); Appendix A to Part 300, Answer to question 22 (“It is important, however, that the agency representative have the authority to commit agency resources and be able to ensure that whatever services are set out in the IEP will actually be provided.). Since current law requires persons with decision-making authority to be at IEP meetings and IEP meetings are the forum in which decisions as to each child are supposed to be made, additional meetings would be superfluous, and mandatory dispute resolution sessions may not include important members of the IEP team whose input is essential to educational planning decisions. Moreover, the House provision does not even require a person with decision-making authority to participate in the mandatory “resolution session.” Further, school districts can resolve differences prior to due process under current law mediation provisions if they develop mediation procedures that parents trust.
5. CCD strongly opposes the House provision establishing a one year statute of limitations for IDEA due process “complaints” (due process hearing requests).
Rationale: While H.R. 1350 preserves “child find” in Sec. 612(a)(3), this provision would excuse school districts’ failures to comply with the “child find” requirement, by limiting parents ability to obtain relief for more than one year of missed services, even if the violation took place years ago. Indeed, it would encourage such noncompliance. Further, the House provision establishes an unacceptably short limitations period when school districts have “found” but failed to serve or underserved children
CCD also opposes the Senate provision as currently drafted.
First, while the Senate creates a two year limit it allows states to establish a shorter time limit. The option for a shorter time period should be removed but states should be allowed to establish longer periods. CCD supports the exceptions to the statute of limitations but would revise subparagraph (E)(ii) by adding “or misleading” after “false.” Further, in order to avoid litigation and differing decisions from jurisdiction to jurisdiction Senate report language that appears to create an exception to the statute of limitations for “continuing violations” must be placed in the bill. This is because courts are increasingly unwilling to consider legislative history. CCD believes that if a child is not “found” or is “found” but not provided FAPE that to deny him or her due process and relief is inconsistent with the “child find” requirement and/or the Act’s stated purpose of ensuring that FAPE is provided to all children with disabilities.
Similarly, CCD believes that the statute should make clear that when the question “Is the IEP proposed by the district appropriate” is raised at due process hearing, the district carries the burden of proof on that issue. (Sec. 615(f)(3)(F)).
6. CCD does not oppose a 90 day limit for filing appeals to court after due process hearings (Sec. 615 (i)(2)(B), as provided for in the Senate bill, provided that parents are represented by counsel at the due process hearing from which appeal is taken or, if un-represented the school district affirmatively proves by clear and convincing evidence that parents had actual knowledge of the time limit and deliberately failed to file suit in a timely fashion without good cause. At the very least, there should be exceptions for failure to file in court similar to those in the Senate bill limiting the time to file due process complaints.
7. CCD strongly supports Senate provisions on hearing officer qualifications. Sec. 615(f)(3)(A). While the House bill essentially codifies current regulations the Senate bill adds important requirements for hearing officers, including that such officers have a fundamental understanding of the IDEA.
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