1. MAASE Winter Conference resolving IDEA disputes Presenter: Robert A. Lusk Lusk Albertson PLC (248) February 8, 2017
Providing Legal Solutions,
So Teachers Can Teach and Students Can Learn.

2. Introduction Focus on IDEA ADA & Section 504 Disputes
Two Kinds of IDEA Disputes
Informal Disputes
Formal Disputes
State Complaints
Due Process Hearings

3. The Gold Standard – No Dispute
Avoid Mistakes
Train, Train and Re-train
Take Child-First Approach
Build Communication and Trust

4. Informal Disputes Definition – For Our Purposes:
Concerning an IDEA-eligible student: a request from the parent the District refuses or a proposal from the District the parent rejects.
Response – Prior Written Notice (PWN)

5. Prior Written Notice (PWN)
Applies to More Than REEDs, IEPs and MDRs
Two Examples
Parental Request to Review Private IEE
Parent Request for Amend Existing IEP
Six Elements of PWN
Action proposed or refused;
Explain why proposed or refused;
Each evaluation procedure, assessment, record or report supporting District decision;*
Direct to procedural safeguards;
Other options considered; and,
Other relevant factors.*
Tools for Communicating PWN

6. State Complaints, Generally
IDEA Requirements:
Each SEA must have a state complaint procedure that:
Provides for filing a complaint with SEA; and,
At SEA’s discretion:
Provides for filing with a public agency; and,
Review of public agency’s decision by SEA
Requirements of Michigan Law, MCL (1)(h)
ISDs must investigate and resolve state complaints.
Issue written findings.
Michigan Law is Consistent with Federal Law

7. State Complaints, Recent Changes
MDE is Investigating All State Complaints
Given Reason – Conflict of Interest
Metropolitan v Rural ISDs
Provision of State Law Addresses Issue
ISD Personnel Tagging Along
What About Michigan Law?
Is There Another Reason?
MDE is Ruling on Substantive FAPE Issues
Former Practice – Defer Substantive Issues to Due Process
Substantive FAPE Issues
Identification, Placement, LRE
MDR, ESY, Etc.
Is this Legal?
Pros and Cons
Speed and Expense
Increased Probability of Error and Abuse, Both Ways
Centralization of Power & Authority

8. Are There Options? District May Initiate Due Process Hearing
Sometimes Required
To Deny IEE Request
To Override Parental Refusal to Consent to Evaluate
Always an Option, 34 CFR (a)(1)
Effect of Filing Due Process
MDE Guidance
Dear Colleague Letter from OSEP, April 15, 2015
Two Problems*
Acknowledges District’s Right to File Due Process
Not Legally Binding, 20 USC 1406(d) and (e)
Upshot

9. Dear Colleague Letter (4/15/15)
“A parent or a public agency may file a due process complaint on any matter relating to the identification, evaluation, or educational placement of FAPE to the child.”
“If a complaint is received that is also the subject of a due process hearing the state must set aside any part of the state complaint that is being addressed in the due process hearing until the hearing officer issues a final decision…”
“We question why a public agency would seek a due process hearing when there is already an active state complaint on the same issue ….”

10. State Complaints, Procedure
Process
Complaint Filed
MDE Appoints MDE Investigator
ISD Investigators May Tag Along
MDE Investigator
Reviews Paperwork
May Conduct Interviews
MDE Issues Decision
Appeals
Circuit Court
DPH?

11. Due Process Hearings Procedure Appeal to Federal or State Court
Complaint Filed
Administrative Law Judge (ALJ) Appointed
Qualifications
Independent – Not Employed by MDE
Issues Clarified
Hearing
Exhibits Entered
Witnesses Testify – Educators, Parents & Experts
Rules of Evidence
Transcript
ALJ Decision
Appeal to Federal or State Court

12. Avoid Legal Disputes, Pre-Filing
Strategies
Leadership
Manage Up
Manage Down
Train, Train & Retrain
Legal Issues
General
Compliance Specific
People Issues
Students
Parents

13. Avoid Legal Disputes, Post-Filing
Mutual Agreements
Resolution Sessions
Mediation
Offers of Settlement
Private Agreements*
Otherwise – Someone Else Decides

14. Resolution Sessions
Procedure
Substance
Practical Advice

15. Resolution Sessions, Procedure
Timeline
Within 15 Calendar Days of Receiving DPC
Mandatory, Unless Waived in Writing or Agreement to Mediate
Not Required if District Initiated DPH
Attendees
Parent(s)
School District Personnel
Knowledgeable IEP Members
District Representative with Decision-Making Authority
Attorney?

16. Resolution Sessions, Substance
Attempt to Resolve DPC
Resolve by Discussion
Confidentiality of Discussion
Confidentiality Agreement?
Enter Into Legally Binding Agreement, Enforceable by SEA or Court
Content of Agreement
Drafting Agreement
Three Day Revocation Period

17. Resolution Sessions, Practical Advice
Consult with Your Attorney in Advance
Consider Parameters of Potential Agreement
Consider Preparing Form of Agreement
At Resolution Session
Be Prepared to Listen Constructively
Be Prepared to Propose and Document Resolution
Be Prepared to Take Notes
Be Prepared to Meet Again

18. Mediation Substance Procedure Practical Advice
Similar to Resolution Session
One Important Difference – Mediator
Consider Training
Consider Track Record
Procedure
Practical Advice

19. Mediation, Procedure You Can Mediate Anytime
Before, During and After DPH
Doesn’t Toll DPH Timelines
Anyone Can Serve as Mediator
SEA List
Pick Your Own Mediator
You Can Bring An Attorney
Attorney Doesn’t Have to Lead Discussion
Attorney Should Draft Agreement - Enforcement
Mediation is Voluntary
Mediation is Confidential
Mediation Agreement Enforceable in Federal Court

20. Mediation, Practical Advice
Educate Parents and Staff About Mediation
Mediate Freely
Don’t Wait for a Formal Legal Dispute

21. Offers of Settlement In DPH
Purpose – Narrow Issues & Reduce Attorney’s Fees
Rule
Timing
Practical Advice

22. Private Agreements Settlement Agreements
Resolve Special Education Case
Resolve Other Types of Cases
Recent Restrictive MDE Decision
Holding
Rationale
Unintended Consequences (Potential)

23. MDE Decision Facts Ruling Placement Dispute Agreement with Parent
Trial Placement
Return from Trial Placement
Ruling
Agreement not Enforceable
Rationale
What is not Specifically Permitted by IDEA is Prohibited
IDEA Specifically Allows Resolution Session and Mediation Agreements
Placement Agreements not Specifically Permitted

24. Critique of Decision Not Consistent with Law
Rule – Can Enter Into Agreements Modifying Rights
Certain Laws Prohibit Agreements (i.e., FLSA)
Most Laws Do Not
IDEA Does Not
Pretty Simple Work Around - Mediation

25. Winding Up Overview Available Tools What Needs to be in Agreement PWNs
Resolution Sessions
Mediations
Offers of Settlement
Settlement Agreements?
What Needs to be in Agreement
Ideally – Agreement will be Custom Tailored
Common Essential Elements

26. Essential Elements Identify Parties and Dispute Reciprocal Promises
The District Will … (Be Precise)
The Parent Will ….
Dismiss (or not file) State Complaint or DPH
Release & Indemnify District
Integration Clause
Amendments
Legal Advice on Essential Elements

27. QUESTIONS
Robert A. Lusk Lusk Albertson PLC 409 E. Jefferson, 5th Floor Detroit, MI (248)