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IDEA–Reauthorized Statute
PROCEDURAL SAFEGUARDS:
MEDIATION AND RESOLUTION SESSIONS |
The reauthorized Individuals with Disabilities Education Act (IDEA) was signed into law on Dec. 3, 2004, by President George W. Bush. The provisions of the act became effective on July 1, 2005, with the exception of some of the elements pertaining to the definition of a “highly qualified teacher” that took effect upon the signing of the act. This is one in a series of documents, prepared by the Office of Special Education and Rehabilitative Services (OSERS) in the U.S. Department of Education, that covers a variety of high-interest topics and brings together the statutory language related to those topics to support constituents in preparing to implement the new requirements.1 This document addresses only the changes to the provisions of IDEA regarding the alignment between IDEA and No Child Left Behind, referred to in this document as the Elementary and Secondary Education Act (ESEA) of 1965, that took effect on July 1, 2005. It does not address any changes that may be made by the final regulations.
IDEA 2004:
1. Requires that mediation2 is available whether or not there is a request for a due process hearing.3
Any state education agency (SEA) or local education agency (LEA) that receives assistance under Part B shall ensure that procedures are established and implemented to allow parties to disputes involving any matter, including matters arising prior to the filing of a due process hearing request pursuant to Section 615(b)(6), to resolve such disputes through a mediation process. [615(e)(1)]
2. Provides parents and schools the opportunity to meet with a disinterested party.
An LEA or SEA may establish procedures to offer to parents and schools that choose not to use the mediation process an opportunity to meet, at a time and location convenient to the parents, with a disinterested party who is under contract with:
3. Adds mediation requirements.
In the case that a resolution is reached to resolve the issues in the request for a due process hearing through the mediation process, the parties shall execute a legally binding agreement that sets forth such resolution and that:
4. Adds “resolution sessions.”
Prior to the opportunity for an impartial due process hearing under Section 615(f)(1)(A), the LEA shall convene a meeting with the parents and the relevant member or members of the individualized education program (IEP) team who have specific knowledge of the facts identified in the request for a due process hearing:
If the LEA has not resolved the issues that are the subject of the request for the due process hearing to the satisfaction of the parents within 30 days of the receipt of the request for a due process hearing, the due process hearing may occur, and all of the applicable timelines for a due process hearing under Part B shall commence. [615(f)(1)(B)(ii)]
In the case that a resolution is reached to resolve the issues that are the subject of the request for a due process hearing at a meeting described in Section 615(f)(1)(B)(i), the parties shall execute a legally binding agreement that is:
If the parties execute an agreement pursuant to Section 615(f)(1)(B)(iii), a party may void such agreement within three business days of the agreement's execution. [615(f)(1)(B)(iv)]
5. Provides that attorneys’ fees are not available for the resolution session meetings required by Section 615(f)(1)(B)(I).
A meeting conducted pursuant to Section 615(f)(1)(B)(i) (a resolution session’s preliminary meeting) shall not be considered:
Any state education agency (SEA) or local education agency (LEA) that receives assistance under Part B shall ensure that procedures are established and implemented to allow parties to disputes involving any matter, including matters arising prior to the filing of a due process hearing request pursuant to Section 615(b)(6), to resolve such disputes through a mediation process. [615(e)(1)]
2. Provides parents and schools the opportunity to meet with a disinterested party.
An LEA or SEA may establish procedures to offer to parents and schools that choose not to use the mediation process an opportunity to meet, at a time and location convenient to the parents, with a disinterested party who is under contract with:
- A parent training and information center or community parent resource center in the state, established under Section 671 or 672; or
- An appropriate alternative dispute resolution entity to encourage the use, and explain the benefits, of the mediation process to the parents.
3. Adds mediation requirements.
In the case that a resolution is reached to resolve the issues in the request for a due process hearing through the mediation process, the parties shall execute a legally binding agreement that sets forth such resolution and that:
- States that all discussions that occurred during the mediation process shall be confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding;
- Is signed by both the parent and a representative of the agency who has the authority to bind such agency; and
- Is enforceable in any state court of competent jurisdiction or in a district court of the United States.
4. Adds “resolution sessions.”
Prior to the opportunity for an impartial due process hearing under Section 615(f)(1)(A), the LEA shall convene a meeting with the parents and the relevant member or members of the individualized education program (IEP) team who have specific knowledge of the facts identified in the request for a due process hearing:
- Within 15 days of receiving notice of the parents' request for a due process hearing;
- Which shall include a representative of the agency who has decision-making authority on behalf of such agency;
- Which may not include an attorney of the LEA unless the parent is accompanied by an attorney; and
- Where the parents of the child discuss their request for a due process hearing, and the facts that form the basis of the request for a due process hearing, and the LEA is provided the opportunity to resolve the request for a due process hearing, unless the parents and the LEA agree in writing to waive such meeting, or agree to use the mediation process described in Section 615(e).
If the LEA has not resolved the issues that are the subject of the request for the due process hearing to the satisfaction of the parents within 30 days of the receipt of the request for a due process hearing, the due process hearing may occur, and all of the applicable timelines for a due process hearing under Part B shall commence. [615(f)(1)(B)(ii)]
In the case that a resolution is reached to resolve the issues that are the subject of the request for a due process hearing at a meeting described in Section 615(f)(1)(B)(i), the parties shall execute a legally binding agreement that is:
- Signed by both the parent and a representative of the agency who has the authority to bind such agency; and
- Enforceable in any state court of competent jurisdiction or in a district court of the United States.
If the parties execute an agreement pursuant to Section 615(f)(1)(B)(iii), a party may void such agreement within three business days of the agreement's execution. [615(f)(1)(B)(iv)]
5. Provides that attorneys’ fees are not available for the resolution session meetings required by Section 615(f)(1)(B)(I).
A meeting conducted pursuant to Section 615(f)(1)(B)(i) (a resolution session’s preliminary meeting) shall not be considered:
- A meeting convened as a result of an administrative hearing or judicial action; or
- An administrative hearing or judicial action for purposes of Section 615(i).