Part 3: Problem Solving
Independent educational evaluation
IDEA State complaints
Due process hearings
Due Process Hearing Procedures
Parents and schools have a “built-in” partnership with the child as the focus. This partnership will grow when parents and school staff work together. Disagreements may happen, but disagreements can also help to make the child’s education better. Disagreements that get solved happily make the parent/school relationship stronger.
What to do when issues arise?
- When issues arise, talk directly with the people involved as soon as possible.
- First, you can call to schedule an informal meeting to discuss the situation.
- Second, you can prepare for the meeting by making a list of issues and some possible solutions.
What can you do in the meeting?
- See if you can agree on the issue(s) that must be addressed.
- Listen actively to understand the other person’s perspective.
- Communicate your concerns clearly. Use notes to keep you and the meeting on track and focused on the child.
- Ask questions or restate so you and others are clear in your understanding.
- Work together to suggest some possible options to resolve the issue(s).
- Analyze all of the options to see if you can find areas of agreement.
- Discuss what should happen next.
What about dealing with emotions in the meeting?
- Try to explain your emotions calmly, and describe what your concerns are about the future to the other participants.
- Ask someone to come with you to the meeting to help you stay focused positively.
- If, by chance, you make a mistake or cause offense, say you are sorry. An apology can go a long way to resolving the situation.
What if the issues are not fully resolved in the meeting?
- Consider scheduling another informal meeting with different or additional people.
- Call others for suggestions on possible future action.
- Call the Wisconsin Special Education Mediation System, 888-298-3857 (toll-free voice) or 262-538-1618 (TTY) or seek information on the WSEMS website at: http://www.wsems.us. A facilitated IEP meeting or mediation could be helpful.
Next Steps: What can be done if informal ways of solving problems don’t work?
- Independent Educational Evaluations (IEEs),
- Facilitated IEP,
- IDEA State Complaints, and
- Due process hearings.
Parents and the school can use one or more of the formal problem solving methods. Schools must tell parents about these formal ways to solve problems:
These formal ways to solve problems can help the school and the parent to talk together. Schools and parents should try the informal methods first and should use the formal methods if the informal methods don’t work.
Before using any of these formal problem-solving methods, parents should understand how they work and with which types of problems they work best. Other parts of this book give information about independent educational evaluations, special education mediation, IDEA State Complaints, and due process hearings.
Before using these formal problem-solving methods, many parents find it helpful to talk to someone at WI FACETS or someone with another support group. Check the list of resources in the back of this book. Help is often free of charge.
(34 CFR 300.502)
DPI Bulletin # 99.02
An evaluation done by qualified people outside of school is called an independent educational evaluation, or IEE. If the parents do not agree with the evaluation and testing done by the school district, they can request that the school pay for an IEE. A parent may only have one IEE for each evaluation done by the school district.
The district must tell parents where they can get an IEE when the parent asks. The school also must tell the parents about the school’s IEE criteria. Parents can pick who will do the IEE, but the people who do the IEE must be at least as qualified as the person doing the testing for the school. Districts can set up policies or criteria for IEEs. The school’s criteria can say who can do IEEs and where IEEs can be done. The criteria must be the same as what the district uses when it has its own evaluator do evaluations.
When a parent asks for an IEE (in writing is best) at district expense, the district has two choices. Without unnecessary delay, the district must either pay for the IEE or file for a due process hearing to argue that its evaluation was appropriate or that the IEE did not meet the criteria of the law.
If the district goes to a due process hearing and the hearing officer says the district is right, the parents may still have an IEE done, but then the parents pay for it.
No matter who pays for an IEE, parents can bring the results to the IEP team. The IEP team must talk about the results of the IEE as it makes special education decisions.
Parents can also use the results of an IEE they paid for in a due process hearing. If a hearing officer orders an IEE as part of a due process hearing, the district must pay for it.
A facilitated IEP (Individualized Education Program) is an option for early conflict resolution that is available to parents and schools. A facilitated IEP uses a neutral trained professional to help the IEP team with the process of deciding what will be included in the IEP. This facilitation may take place at any IEP team meeting.
The facilitated IEP option is voluntary. If either the parents or school do not want to use a facilitator, the IEP meeting will be conducted without one.
Early processes such as expert IEP facilitation . . .to increase collaboration and problem solving skills of school staff and parents can help avoid expensive disputes and promote efforts to help students.”
-The President’s Commission on Excellence in Special Education
The process is free. WSEMS (Wisconsin Special Education Mediation System) pays the facilitators with Wisconsin Department of Public Instruction grant funds.
DPI supports the Wisconsin IEP facilitation system. DPI supports an increase in the number of options available to parents and schools to resolve their disputes. Such options will assist the parties in building long lasting, trustful and collaborative relationships.”
-Dr. Stephanie Petska, Director, Special Education Team, Wisconsin DPI
Why would I want to participate in a facilitated IEP?
A facilitated IEP is used to help when the school and family think an IEP meeting will be difficult to manage due to lack of trust or communication problems. A facilitated IEP is most effective when requested in the very beginning of the IEP process.
How do I request a facilitated IEP?
The parent, guardian, adult student, school representative, or both, may decide a facilitator is needed to help with the IEP meeting. Call WSEMS, 888-298-3857 (toll-free voice) or 262-538-1618 (TTY) to request a facilitated IEP.
Is the facilitator a part of the IEP team?
The neutral facilitator is not part of the IEP team. The role of the facilitator is only to help the group work together. Only the IEP team makes program decisions (not the facilitator).
Who are the facilitators?
WSEMS has a list of skilled facilitators. They come from many backgrounds - law, social work, psychology, and business. Each facilitator has been well trained in effective communication.
Where and when is a facilitated IEP meeting held?
The facilitated IEP meeting is usually scheduled by the school district. The meeting is held at a time and place that is acceptable to all IEP team members, including the parents.
What is the role of the facilitator?
- Helps IEP team focus on developing an effective IEP.
- Guides the discussion by keeping the team’s energy centered on the student.
- Offers ways to address and resolve conflicts in the development of the IEP.
- Models and helps maintain open, respectful communication among team members.
- Helps team members develop and ask clarifying questions about issues that may have come up in past IEP meetings.
- Helps to keep team members on task and within the time scheduled for the meeting.
- Maintains impartiality and does not take sides, place blame, or determine if a particular decision is right or wrong.
“The staff person leading the IEP meeting is able to be free to be the expert in raising and discussing educational issues.
The IEP facilitator was responsible to guide the negotiation and consensus building aspect of the IEP session.”
(Wis.. Stat. 115.797)
DPI Bulletin # 98.07
What is Mediation?
Mediation is facilitated negotiation. A neutral party, a mediator, helps parents and school districts resolve their disputes in an informal meeting. Mediation is voluntary. The parent(s), school district or the mediator may end the mediation at any time. The mediator does not make a decision for the parties, like a judge or a due process hearing officer. The mediator helps the parties do the following: identify issues, discuss viewpoints, generate options, and create solutions agreeable to all. When the parties resolve all or some of the issues, they work together to write an agreement. They both sign the agreement. Parties may ask an attorney to review the agreement before signing. If the parties are not comfortable with the agreement, they should not sign it. The signed agreement is a contract and is legally binding.
Mediation does not delay or deny the right to a due process hearing. Mediation encourages mutual respect, promotes communication and contributes to a more positive working relationship in the future.
What is a Request for Mediation Form?
A form is available from the Wisconsin Special Education Mediation System (WSEMS) at 888-298-3857 (toll-free voice), 262-538-1618 (TTY) or at: http://www.wsems.us The form is simple to complete. The person(s) requesting mediation describes the issues and signs the form. The WSEMS intake coordinator can provide assistance in completing the form.
How Is Mediation Requested?
- Together: after discussing the issues, the parents (or guardian or adult student) and the school representatives may decide they need a neutral person to help them to resolve the issues. This is called a joint request.
- Individually: a parent, adult student, or school representative may request mediation.
A request for mediation form is filled out:
What Happens if a Parent Requests Mediation Individually?
WSEMS notifies the other person identified on the request form. The intake coordinator explains the mediation process and finds out if the non-requester would like to try mediation. The non-requester is not required by law to participate in mediation. The mediation process is voluntary. The non-requester has five business days to decide whether or not to participate.
Who Pays for Mediation?
Mediation is a free process for both parents and schools. WSEMS pays the mediators with grant funds from the Wisconsin DPI. However, participants in the system must pay for their own attorney’s fees, if any.
When is Mediation Helpful?
- An ongoing relationship between family and school representatives
- A need for privacy
- A need for creative and flexible solutions
- Individualized education program (IEP)
- Free appropriate public education (FAPE)
Mediation is a process that is right when there is:
Under special education law, mediation may be used for disputes involving:
Mediation is most effective when used early in a dispute.
Who May Participate in Mediation?
- Social worker
- Minister, priest, rabbi
- Family friend
- Doctors or other medical providers
Wisconsin law provides that those who may participate are the parent(s) (or adult student or guardian) and two school district representatives. However, others may participate - with the permission of the parents and school representatives. Other participants may include:
Participants may request a break at any time during the mediation session to talk with someone not present in the session by telephone or in person.
Who Are the Mediators?
WSEMS, along with the Wisconsin Department of Public Instruction, has a list of well-trained mediators. The mediators come from a wide range of professional backgrounds, including law, psychology, social work, business and education. There is no advantage or disadvantage to having a lawyer or non-lawyer mediator. Each mediator has completed a five day training on special education mediation. Each is also required to complete one day of training each year in order to remain on the list.
After the parties agree to participate, WSEMS appoints a mediator. If one (or both) party objects to the mediator, then WSEMS appoints a different mediator. Either party may request a specific mediator. A mediator who is not on the list may be used, but at the parties’ expense. The intake coordinator asks both parties a few standard questions about the case and, along with the mediation director, matches the needs of the individual case to the training, education, experience and personality of a particular mediator.
What About the Law?
The Individuals with Disabilities Education Act (IDEA) is the federal law designed to assure that children with disabilities receive a free appropriate public education (FAPE). The IDEA requires that all states offer mediation as a voluntary option. State law creates the mediation to be offered as an option in Wisconsin. DPI Information Update Bulletin #98.07 describes the mediation system in detail.
The Mediation Session
- The session is held within 21 business days after the mediator is agreed upon by the participants.
- The mediator works with the participants to find a convenient location, date, and time to meet.
- Mediations may be held in libraries, community centers, the school, school district offices, attorneys’ offices, or other locations agreeable to the participants.
- The mediator helps the participants decide who else may be present at the session.
- Everyone sits around a table with the mediator in a relaxed, informal manner.
- The mediator explains the agreement to mediate and then asks the parties to sign it.
- The mediator explains the mediation process and the mediator’s role.
- The mediator asks each participant to explain his or her viewpoints on the situation.
- The mediator may ask questions to clarify, brainstorm, or create options.
- Typically, there will be no audio, video or written record of the session.
- Anyone may ask the mediator for a break at any time, or the mediator may decide to call for a break.
- A mediation session may last from one hour to one day. The parties are asked to agree to a general schedule before the session begins. Sometimes more sessions are needed.
- The parents and school district representatives work together to write down how they have decided to resolve their dispute. They both sign this written statement, which is called the mediation agreement. A participant may, at his or her own cost, have a lawyer review the agreement.
The Day Has Arrived:
After the Session:
All participants are asked to complete a survey about the session. The information is given anonymously and remains confidential. The survey helps WSEMS to measure how the mediation process is working.
(34 CFR 300.151)
Parents can use an IDEA State Complaint when they think the school has not followed special education law. Districts must tell parents about their right to file an IDEA complaint. Any person (parent, teacher, and other people) or organization can file an IDEA State Complaint. An individual or organization must file the complaint within one year of the alleged violation. IDEA State Complaints are sent to DPI for investigation.
An IDEA State Complaint says how the district has violated special education law. An IDEA State Complaint must be in writing, signed, and must tell the facts about how the law might have been broken. DPI has a form that can be used for filing complaints. It can be found at: http://www.dpi.wi.gov/forms/doc/f2117.doc If the complaint alleges violations regarding a specific child, it must include the child’s name and address and the name of the school the child is attending. The complaint must also include a proposed resolution of the problem, to the extent known by the person making the complaint. A copy of the complaint must be sent to the district at the same time it is sent to DPI.
The district must have an opportunity to respond to the complaint, including a proposal to resolve the complaint. The district and parent can agree to use mediation to resolve the complaint. The DPI must investigate the complaint. Generally, DPI will look at records and talk to people by phone. If necessary, DPI staff will visit the school.
DPI must make a decision on the complaint within 60 days of getting it. DPI’s decision will tell the facts and will tell whether or not the district has broken the law. Sometimes, DPI will extend the 60-day limit to finish the investigation.
If a parent files an IDEA State Complaint and requests a due process hearing on the same issues, DPI will not investigate the issues until the hearing and any appeals are over. The decision in the due process proceedings will be binding. If the parent and the school decide on mediation, DPI may extend the investigation of the IDEA State Complaint until the mediation is over, if the parent and the school agree to the extension. The parent may withdraw their IDEA State Complaint at any time before DPI makes a decision.
If DPI finds that a district did violate the law, the district must make a plan to fix the problem. This is called a Corrective Action Plan, or CAP. If the person filing the complaint wants to know what is in the CAP, a copy can be requested from DPI.
To find out more about filing an IDEA State Complaint, call WI FACETS at 877-374 - 4677 or call DPI at 608/266 - 1781 or 800/441- 4563 for help in filing an IDEA State Complaint.
Complaints must be in writing and signed and should be sent to:
DPI Division for Learning Support: Equity and Advocacy
PO Box 7841
125 S. Webster St.
Madison, WI 53707-7841
(WI Ch. 115.80)
A due process hearing is a legal process used by parents and districts to decide issues. It is usually used when every other attempt to solve the problem has failed. Due process hearings can be used for problems with evaluations, IEPs, educational placement decisions, or FAPE. Schools may request a due process hearing if a parent of a child in public school refuses to give consent to evaluate. The district can also file for a due process hearing if it feels it should not pay for an IEE. Parents may file a request for a due process hearing on any issue related to the IEP process or FAPE. A request for a due process hearing must be filed within one year of when the party knew or should have known about the action that forms the basis of the request for a hearing.
Schools must tell parents how to ask for a due process hearing. Parents can also call DPI at 608/266-1781 or 800/441-4563 to ask for a form or print one from the DPI website at: http://www.dpi.wi.gov/forms/pdf/pod2115.pdf They would fill out the form and send it to the school district with a copy to DPI. The form will ask for information on the problem and will ask for ideas to solve the problem.
When DPI receives a request for a due process hearing, a hearing officer is named from a list. The school cannot ask for a specific hearing officer; neither can the parents.
Schools usually have lawyers representing them at due process hearings. Schools can use experts from the school or can use any other expert to support the school's side. Parents may use a lawyer to represent them and their child at a due process hearing, or they may represent themselves at the hearing. DPI will send parents a list of agencies that may provide a free or low-cost lawyer. Parents can also use experts to help support their case.
TIP: Parents are encouraged to talk to a lawyer before requesting a hearing.
- An option for dispute resolution required to be made available whenever a due process hearing has been requested by a parent.
- The resolution process is an informal meeting between the school and parents to give them an opportunity to resolve the specific dispute that is the basis of the due process hearing request.
- The resolution meeting may be held with or without the help of a facilitator.
- Facilitators are available from WSEMS.
Before a hearing can be held, there must be a chance for a resolution meeting, if the parent requested the due process hearing. A resolution meeting is an informal meeting with the school and parents to try to settle the problem. The school must schedule the resolution meeting within 15 days of getting the parent’s hearing request. They can use a facilitator from the WSEMS at the resolution session, if they agree. If the problem is not settled within 30 days, then the hearing can happen. The school and parents can agree not to have a resolution meeting and go directly to a hearing. They can agree to use mediation instead of a resolution meeting.
What is the resolution process?
- Facilitation services from WSEMS for the resolution meeting are free to parents and schools.
Is there a fee for facilitation?
- Call WSEMS, 888-298-3857 or 262-538-1618 (TTY).
- If either the parents or school do not want a facilitator, one will not be provided.
How to request a facilitator?
- Yes - but, the parents and the school district must both agree in writing to waive a resolution meeting.
- They must sign a written waiver and either use the mediation process or go on to a due process hearing.
May the meeting be waived?
- Parents, school representative (with decision-making authority on behalf of the school), and relevant member(s) of the IEP team.
- The parents and school district decide who from the IEP team they would like to have participate.
- The school district may not bring an attorney unless the parents bring an attorney. (No attorney's fees will be awarded in the resolution process.)
Who may participate in a resolution meeting?
- The resolution meeting must be held within 15 days of the school receiving the due process hearing request. The process can consist of one or more meetings.
- If the school is not able to resolve the dispute to the satisfaction of the parents within 30 days, the due process hearing may proceed.
Is there a timeline?
- There is no legal requirement to keep discussions in the resolution meeting confidential.
What about confidentiality?
TIP: A confidential agreement could be considered for parties to sign at the beginning of resolution meeting, but the legal effect of such an agreement is unclear.
The due process hearing includes witnesses, questioning and cross-examination, and presentation of evidence by both the parents and the school. At least five business days before a hearing, the parents and the schools must both tell what information they are going to present in the hearing. The hearing officer may subpoena and swear in witnesses. The hearing officer will direct the hearing and will decide how the hearing will be done. The hearing officer does not have to use statutory or common law rules of evidence. He or she allows all reasonable testimony and will not allow testimony about topics that have nothing to do with the disagreement. The hearing officer will use facts, the law, and the evidence to make a decision on the case.
The hearing officer has the power to order any solution to the problem that is reasonable. The hearing officer has 45 days to make a decision after the resolution process is finished. The hearing officer can give extensions for specific amounts of time for either side if there is a good reason. Timelines are shorter in discipline situations. See Part 4.
The district pays for the due process hearing. Parents pay for their own attorneys and, if the parents win the case, they can request from a court their attorney expenses be reimbursed by the school. There are some limits, so parents should work with a lawyer that understands special education.
The hearing officer’s decision is final and binding unless appealed. If either side does not agree with the hearing officer’s decision, they can file for a civil action (lawsuit) in the circuit court (state court) where the child lives, or in a U.S. district court (federal court). Appeals to state or federal court must be filed within 45 days of the hearing decision. The court makes a decision based on the evidence. The decision of the hearing officer and the hearing officer’s report is part of the evidence.
The school and the parents both have the responsibility to make sure their child’s education is not interrupted while the hearing is going on. Unless the parents agree to it, the school cannot change the child’s educational placement while the hearing is going on. This is called the “stay-put” rule. Parents and the district may agree to a new placement if they think that’s what is best for their child. If the issue involves the child’s first admission to school, the child, with the parents’ consent, must be placed in the school until all proceedings are over.
If a hearing officer’s decision agrees with the parents that a change in placement is appropriate, the placement decided by the hearing officer becomes the child’s current placement until the end of any appeals.
Stay-put is different for some discipline situations. See Part 4.