Participation of attorneys in resolution meetings when the parent is not accompanied by an attorney

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1 Report of Inquiry Bureau Resolution Determination Conducted by the Bureau of Exceptional Education and Student Services Involving the Miami-Dade County School District BACKGROUND The Florida Department of Education, Bureau of Exceptional Education and Student Services (Bureau) received a state complaint from ****************on November 21, 2014, alleging that the Miami-Dade County School District violated federal and state laws relating to the education of students with disabilities. Specifically, the allegation involved the following issue: ISSUE: Whether the Miami- Dade County School District violated the requirements related to due process resolution meetings during the time period from November 21, 2013, to November 21, 2014, specifically regarding: Participation of representatives from the district that have decisionmaking authority Participation of attorneys in resolution meetings when the parent is not accompanied by an attorney The 60-day timeline for the completion of the complaint inquiry began with receipt of the complaint, with an anticipated completion date of January 20, As part of the inquiry process, the complainant and the district were asked to submit relevant documents and information to the Bureau.**************, Director, Exceptional Student Education (ESE), Miami-Dade County School District, submitted documentation on behalf of the district. The complainant also submitted documentation. The complainant alleged that during some resolution meetings in which no attorney was physically present, the individual with decision-making authority left the meeting to confer with the district s legal counsel. Therefore, not only was this individual not empowered to make decisions, but also the district was actually represented by an attorney in these cases, when the petitioner was not. LEGAL AUTHORITY FOR THE BUREAU S FINAL DECISION Section of Title 34 of the Code of Federal Regulations (34 CFR (a)(2) states (d) Sufficiency of Complaint. (1) The due process complaint required by this section must be deemed sufficient unless the party receiving the due process complaint notifies the hearing officer and the other party in writing, within 15 days of receipt of the due process complaint, that the receiving party believes the due process complaint does not meet the requirements in paragraph (b) of this section. (2) Within five days of receipt of notification under paragraph (d)(1) of this section, the hearing officer must make a determination on the face of the due process complaint of whether the due 1 BEESS RES

2 process complaint meets the requirements of paragraph (b) of this section, and must immediately notify the parties in writing of that determination.(3) A party may amend its due process complaint only if--(i) The other party consents in writing to the amendment and is given the opportunity to resolve the due process complaint through a meeting held pursuant to Sec ; or (ii) The hearing officer grants permission, except that the hearing officer may only grant permission to amend at any time not later than five days before the due process hearing begins. (4) If a party files an amended due process complaint, the timelines for the resolution meeting in Sec (a) and the time period to resolve in Sec (b) begin again with the filing of the amended due process complaint. 34 CFR states: (a) Resolution Meeting. (1) Within 15 days of receiving notice of the parent s due process complaint, and prior to the initiation of a due process hearing under , the LEA [Local Educational Agency] must convene a meeting with the parent and the relevant member or members of the IEP Team who have specific knowledge of the facts identified in the due process complaint that (i) Includes a representative of the public agency who has decision-making authority on behalf of that agency; and (ii) May not include an attorney of the LEA unless the parent is accompanied by an attorney. (2) The purpose of the meeting is for the parent of the child to discuss the due process complaint, and the facts that form the basis of the due process complaint, so that the LEA has the opportunity to resolve the dispute that is the basis for the due process complaint. (3) The meeting described in paragraph (a)(1) and (2) of this section need not be held if (i) The parent and the LEA agree in writing to waive the meeting; or (ii) The parent and the LEA agree to use the mediation process described in (4) The parent and the LEA determine the relevant members of the IEP Team to attend the meeting.(d) Written settlement agreement. If a resolution to the dispute is reached at the meeting described in paragraphs (a)(1) and (2) of this section, the parties must execute a legally binding agreement that is (1) Signed by both the parent and a representative of the agency who has the authority to bind the agency; and (2) Enforceable in any State court of competent jurisdiction or in a district court of the United States, or, by the SEA, if the State has other mechanisms or procedures that permit parties to seek enforcement of resolution agreements, pursuant to (e) Agreement review period. If the parties execute an agreement pursuant to paragraph (d) of this section, a party may void the agreement within 3 business days of the agreement's execution. The corresponding state requirements are found in State Board of Education Rule 6A , Florida Administrative Code. The following information was excerpted from the questions and answers section of the memorandum entitled Dispute Resolution Procedures Under Part B of the Individuals with Disabilities Education Act (Part B) dated July 23, 2013, and produced by the Office of Special Education Programs. 2 BEESS RES

3 Question D-4: If a due process complaint is amended and the 15-day timeline to conduct a resolution meeting starts over, must the LEA conduct another resolution meeting? Answer: Yes. Under 34 CFR (d)(3), a party may amend its due process complaint subject to the following conditions. The other party must consent in writing to the amendment and be given the opportunity to resolve the complaint through a meeting held pursuant to 34 CFR Alternatively, the hearing officer may grant permission to amend the complaint at any time not later than five days before the due process hearing begins. This process is intended to ensure that the parties involved understand the nature of the complaint before the due process hearing begins. 71 FR (August 14, 2006). Under 34 CFR (d)(4), when a due process complaint is amended, the timeline for the resolution meeting and the time period for resolving the complaint begin again with the filing of the amended due process complaint. 71 FR (August 14, 2006) Question D-6: Are there circumstances in which an LEA would not be required to convene a resolution meeting when it receives notice of a parent's due process complaint? Answer: Yes. Under 34 CFR (a)(3), there are two occasions when a resolution meeting need not occur: (1) when the parent and LEA agree in writing to waive the meeting; and (2) when the parent and LEA agree to use the mediation process described in 34 CFR to resolve the due process complaint. There are no provisions in the IDEA that allow a parent or an LEA to unilaterally waive the resolution meeting, because the resolution meeting is "a required vehicle for the parent and the LEA to attempt to resolve their differences prior to initiating a due process hearing." 71 FR (August 14, 2006). Likewise, an agreement to use another alternative dispute resolution mechanism if available in the State, by itself, would not relieve the LEA of its obligation to convene a resolution meeting. Question D-10: Must an LEA include the days when schools are closed due to scheduled breaks and holidays in calculating the timeline for convening a resolution meeting? Answer: Yes. Even during periods when school is closed, the LEA must hold the resolution meeting within 15 days of receiving notice of the parent's due process complaint. 34 CFR (a). The only exceptions to this requirement are if the parent and the LEA agree in 3 BEESS RES

4 writing to waive the resolution meeting, or the parent and the LEA agree to use mediation under 34 CFR Under 34 CFR (a), "[d]ay means calendar day unless otherwise indicated as business day or school day." Therefore, the SEA or LEA may not suspend the 15-day timeline for convening a resolution meeting while schools are closed for breaks or holidays. Such a delay would be inconsistent with the 15-day timeline for convening the resolution meeting and the 30-day resolution period described in 34 CFR , and also would delay the initiation of the 45-day timeline for issuing a final decision in a due process hearing under 34 CFR (a). 71 FR (August 14, 2006). Question D-11: What is an LEA's responsibility to convene a resolution meeting when the parent cannot attend within the 15-day timeline? Answer: The LEA must attempt to schedule an in person meeting with the parent within 15 days of receiving the parent's due process complaint. If the LEA notifies the parent of its intent to schedule a resolution meeting within the 15-day timeline and the parent informs the LEA in advance of the meeting that circumstances prevent the parent from attending the meeting in person, it would be appropriate for an LEA to offer to use alternative means to ensure parent participation, such as video conferences or conference telephone calls, subject to the parent's agreement. 71 FR (August 14, 2006). Whether the meeting is conducted in person or by alternative means, the LEA must include the required participants and be prepared to discuss with the parent the facts that form the basis of the due process complaint and any possible resolution of the complaint. Question D-12: Must the LEA continue its attempts to convince a parent to participate in a resolution meeting throughout the 30-day resolution period? Answer: Yes. If a parent fails or refuses to participate in a resolution meeting that the LEA attempts to convene within 15 days of receiving notice of the parent's due process complaint, an LEA must continue to make diligent efforts throughout the remainder of the 30-day resolution period to convince the parent to participate in a resolution meeting. At the conclusion of the 30-day resolution period, an LEA may request that a hearing officer dismiss the complaint when the LEA is unable to obtain the participation of a parent in a resolution meeting, despite making reasonable efforts to obtain the parent's participation and documenting its efforts, using the procedures in 34 CFR (d). 71 FR (August 14, 2006). 4 BEESS RES

5 Examples of appropriate efforts LEAs can make to obtain the participation of the parent in the resolution meeting include detailed records of telephone calls made or attempted and the results of those calls and copies of correspondence sent to the parents and any responses received. 34 CFR (b)(4). In making such efforts, it also would be appropriate for an LEA to inform the parent that the LEA may seek the intervention of a hearing officer to dismiss the parent's due process complaint if the parent does not participate in the resolution meeting. Question D-15: What is the SEA's responsibility for ensuring that LEAs comply with the resolution process requirements? Answer: As explained in the Analysis of Comments and Changes, the Department fully expects that only in very rare situations will an LEA fail to meet its obligation to convene a resolution meeting within 15 days of receiving notice of the parent's due process complaint, delay the due process hearing by scheduling meetings at times or places that are inconvenient for the parent, or otherwise not participate in good faith in the resolution process. In instances of noncompliance, parents are able to request a hearing officer to allow the due process hearing to proceed. 71 FR (August 14, 2006). In addition, an SEA has an affirmative obligation to ensure its LEAs' compliance with the resolution process timelines, consistent with its general supervisory and monitoring responsibilities. 34 CFR and (d)(2). The SEA must monitor LEAs located in the State for compliance with the requirements for resolution meetings in 34 CFR Accordingly, the State must ensure that its LEAs convene a resolution meeting within 15 days of receiving notice of the parent's due process complaint. If the LEA fails to convene a resolution meeting and the parties have not agreed to use mediation or agreed in writing to waive the meeting, the State must ensure the LEA corrects the noncompliance as soon as possible and in no case more than one year after the State's identification of noncompliance, as required in 34 CFR (e). If necessary to achieve compliance, the SEA may use appropriate enforcement actions consistent with its general supervisory responsibility under 34 CFR and to ensure that the LEA complies. Also, as part of the State's general supervisory responsibility, the SEA must ensure that due process hearing decision timelines are properly calculated and enforced. Therefore, the SEA must establish a mechanism for tracking the resolution process to determine when the resolution period has concluded and the 45-day due process hearing timeline in 34 CFR (a) (or the expedited due process hearing timeline in 34 CFR (c)(2)) begins. The SEA has the flexibility 5 BEESS RES

6 to determine its procedures and the appropriate mechanism for tracking the resolution process, given the State's unique circumstances. DISCUSSION AND CONCLUSIONS 1. The complainant expressed concerns that the district consulted with their counsel before final decisions were made regarding a resolution agreement and questioned whether the representative with decision-making authority actually maintained the power to authorize a resolution agreement. 2. Neither the complainant nor the district submitted documentation to indicate that the district representative with decision-making authority left any of the resolution meetings to confer with legal counsel. 3. The due process resolution session reports, as well as the resolution meeting sign-in sheets, did not indicate that the district was accompanied by an attorney in a resolution meeting when the parent was not. 4. According to federal regulations and guidance from OSEP, the district maintains the responsibility to schedule resolution meetings within 15 calendar days of receiving notice of the parent s due process complaint. According to federal regulations, resolution meetings are not required when the parent and local education agency (LEA) agree in writing to waive the meeting or when the parent and LEA agree to use the mediation to resolve the due process complaint. 5. Therefore, as long as the due process request submitted before the courts contains the required components listed under (2)(b), and an ALJ has not submitted an order of insufficiency, the district maintains the responsibility to schedule and attempt to hold a resolution meeting regardless of the holidays, scheduled breaks and when schools are closed. 6. Documentation provided for the due process case dated December 20, 2013, indicated that a resolution meeting was not held or scheduled within the 15-day timeline. FINDINGS OF NONCOMPLIANCE Based on the information provided, there is no evidence that the Miami Dade County School District violated requirements related to the participation of representatives from the district that have decision-making authority and the participation of attorneys in resolution meetings when the parent is not accompanied by an attorney. CORRECTIVE ACTIONS None ADDITIONAL FINDING OF NONCOMPLIANCE 6 BEESS RES

7 Based on the information provided, there is evidence that the Miami Dade County School District violated requirements related to holding resolution meetings within 15 calendar days of the filing of the due process request. CORRECTIVE ACTIONS No later than November 30, 2015, the district shall submit a list of all due process requests filed during the time period from November 24, 2014, to November 13, 2015, and include documentation verifying that resolution meetings were scheduled or held within the 15-day timeline. 7 BEESS RES