The Office for Dispute Resolution (ODR)

The Office for Dispute Resolution (ODR)Who Are We? Funded by the Department of Education (PDE) Meets federal requirement of having due process and mediation available to parents and local education agencies

ODR Optional activities NOT federally mandated: Special Education ConsultLine Call Resolution Process (CRP) IEP Facilitation Resolution Meeting Facilitation Creating Agreement Training NEW: Evaluative Conciliation Conference (ECC) Pilot

ODR Resources available to assist constituents: New and improved ODR website Dispute Resolution Manual On-line request submission and activity evaluation Informational videos Brochures/Fact sheets Links to state and federal resources Link to CADRE Bilingual specialist to assist callers Parent Guide (NEW)

ODR Video Resources available: The Mediation Process IEP Facilitation Resolution Meeting Procedural Safeguards Notice Resolution Meeting Facilitation Mock Due Process Hearing Introduction to Special Education Law Motions Practice in a Due Process Hearing Procedural Safeguards Notice – audio version

ODR More Video Resources available on new ODR website: A Tale of Two Conversations Hearing Officer Introductory videos 4-Part Video Series on Preparing for Due Process Pre-hearing Matters Exhibits and Witnesses The hearing itself Tips on Participating in due process

Exemplar State Pennsylvania is only one of four states selected by CADRE (with approval by OSEP) as an “exemplar state” in the area of special education dispute resolution.

Disclaimer… Local Education Agency (LEA) = EI Preschool Program School District Intermediate Unit Charter/Cyber School

Mediation

Important things about mediation The decision to use mediation is voluntary for disputes regarding a student’s program or placement. It is a process that depends on the willingness of the parties to discuss their concerns openly and honestly. Mediation agreements are binding in a court of law.

Important things about mediation All other rights and responsibilities under special education law, such as the right to a due process hearing, stay in place whether or not mediation is utilized. Focuses on mutual-problem solving, is generally less stressful, less expensive, and usually less time-consuming to complete than a hearing.

Participants in Mediation Parents may invite 2 other participants The LEA may bring 3 participants – including someone who can commit resources Attorneys do not participate

Mediation ODR arranges time, date and place of the mediation, assigning mediator and paying all mediator fees and expenses. Except for mediations involving Gifted only children, no cost to parties except for payment of fees for any guests they invite to participate.

Mediation: OCDEL Infants/Toddlers If parent requests mediation, the Infant/Toddler EI program must attend Mediation must be scheduled and held within ten days of receipt of request If mediation is successful, OCDEL receives a copy of signed agreement No established timelines for preschool Ages 3-5

Mediation Process Opening Statement Joint Session Caucus Joint Session Agreement Writing

Mediation Statistics More than 400 requests each year Majority of requests go to mediation Between 77-84% agreement rate each year

Mediators – Who Are They? Independent contractors Must have experience as a mediator Must have knowledge of special education law Contractors are diverse group that includes mediators, attorneys, consultants, former educators, therapists, professors

Due Process

Due Process Can be requested by either the parent or LEA, with majority of requests from parents For children who are or are thought to be child with disability, or For students who are or may be gifted, or For protected handicapped students under Chapter 15/504 service agreement

Due Process Hearing can be Requested for Disputes Surrounding… Identification Evaluation Educational placement Provision of a free appropriate public education (FAPE)

ODR Hearing Officers… Are impartial and are proficient in special education law. Possess the knowledge and ability to conduct hearings and write decisions according to standard legal practice.

Hearing Officers – Who Are They? 6 Full-time 5 Attorneys 1 Psychologist 1 Independent Contractor to oversee cases involving Gifted only children 1 Independent Contractor to oversee overflow/conflict cases

Resolution Meeting IDEA 2004 states that when parents initiate due process, the LEA must hold a meeting with the parent within 15 days unless both sides agree to waive the meeting or use mediation. ODR is responsible to track this information and forward to BSE for compliance review.

Due Process Hearing Evidence Exhibits (exchanged by the parties) Sworn Testimony (taken down by a court reporter)

Hearing Officer Decisions Based on… Evidence Findings of Fact Credibility determinations Conclusions of law

Due Process Statistics Fiscal Year 2011-12 had 859 requests Large majority cancel prior to full adjudication due to Parties reaching agreement Resolution Meeting agreements Withdraws by requesting party

Due Process Most Common Issues Compensatory education Evaluation IEP issues Placement Identification Eligibility

Now Let’s Look at the Other Early Dispute Resolution Processes Special Education ConsultLine Call Resolution Process (CRP) IEP/IFSP Facilitation Resolution Meeting Facilitation Evaluative Conciliation Conference (ECC) Creating Agreement Training

Special Education ConsultLine Toll-free service established in 1995 by PDE Became a service of the Office for Dispute Resolution in 2000 Annually serves 3,000-4000 parents and advocates of children with disabilities by providing information and assistance with special education-related issues. Provides access to the state complaint process and information about special education laws, rights, and protections/procedural safeguards Vast library of resources At times, provides intervention/early dispute resolution between parent and school using the Call Resolution Process (CRP)

About the Specialists ConsultLine is staffed by 4 specialists who have at least a bachelor’s degree plus field experience in education, special education or a related human services field. One specialist is bilingual (English/Spanish). Specialists possess analytical ability and research skills. Ongoing staff development and training to keep informed of regulations and best practice.

How ConsultLine Works 1-800-879-2301 Callers use the toll-free number to leave a message, providing brief explanation of concern and leaving convenient times for Specialists to return call. Specialists return calls between 8:00 AM and 5:00 PM Monday through Friday. Calls returned in an equitable manner. Specialists attempt to return calls at least 3 times over the course of 3 business days.

Types of Calls Compliance: “My child’s IEP calls for speech three times a week. The speech therapist is on maternity leave and he hasn’t had services for two months!” Rights : “My district said my child is not eligible for an IEP and I disagree with them. I want a second opinion.” Clarification: “ My advocate tells me I can choose to not have my child receive special education….is that true?” Process: “I think my child needs an IEP; how do I ask for an evaluation?”

Types of Calls Disagreement: “I don’t think my child has made progress with this IEP. What are my options?” Materials and Resource Requests: State forms; publications; referrals to Parent Training and Information Center (PTIC) or other public agency. Bullying – “My child has Asperger’s Syndrome and is being bullied on the playground.” Section 504 - “My child doesn’t need an IEP but has ADHD and I think it’s affecting his/her ability to follow directions and complete assignments on time.”

Types of Calls Mental Health – “Can you explain the difference between a TSS and classroom aide? Would my child qualify for a TSS?” Gifted/Specific Learning Disability (SLD) – “My son has an IQ of 140 and yet is failing English Lit. class. I think it’s because of all of the heavy reading assignments. I’m afraid he might want to drop out if things don’t turn around.” Equitable Participation – “I want my child to receive extra help for reading. I think she may have a disability but the private school said they’re not equipped to handle special needs like hers.”

Call Resolution Process (CRP) The Call Resolution Process (CRP) facilitates the possibility of early resolution of compliance related concerns. CRP is an e-mail notice, sent by the Specialist with the parent’s permission, to the chief special education administrator of the LEA. The message relays the parents’ stated concerns and proposed resolution. The BSE Regional Advisor and Division Chief are copied on the e-mail notice.

CRP Procedures Before CRP is offered, the Specialist: Provides information about state and federal requirements based on the issue reported; Discusses local efforts and options for addressing concerns; Explains the process for filing a state complaint; Determines whether or not the issue meets criteria to offer CRP.

CRP Procedues The LEA manages the e-mail information however it deems appropriate; the Specialist’s role in CRP is complete once the email has been sent. BSE advisor contacts the LEA with a follow-up inquiry. The parent may be contacted by the LEA and/or the BSE advisor.

CRP: Examples of Issues IEP non-implementation Timeline violations Discipline rule violations Child out of school lack of notice provided to the parent Lack of consent Parent was not informed of student’s progress as required by the IEP Behavior plan is not being followed.

IEP/IFSP Facilitation

IEP/IFSP Facilitation Voluntary process for times when parties agree that presence of neutral person will assist them in discussing IEP/IFSP issues Typically used when communication has been hampered or stalled IEP/IFSP Facilitator helps to create atmosphere for fairness and successful drafting of IEP/IFSP

IEP/IFSP Facilitation is….. Free for IDEA-related claims Completely voluntary Unless BOTH sides agree to a facilitator, IEP/IFSP Facilitation will not take place.

IEP/IFSP Facilitation….. Does not usurp the role of the IEP/IFSP team; the LEA continues to lead the meeting IEP/IFSP team (not ODR) sets date for meeting, and provides invitation to participate to parents Does not result in the facilitator becoming a team member

Role of Facilitator Not a member of the team IEP/IFSP team owns the IEP or IFSP Facilitator’s role is only to enhance communication and to help sides address disagreements or conflict relating to IEP or IFSP only Facilitator offers no technical assistance or input regarding content Facilitator sits in silence if parties are moving forward

Role of Facilitator An IEP/IFSP Facilitator is like a referee… If the game is going well, there is not much need for interference. At other times, the referee’s responsibility is to get more involved to ensure fair play and to keep the game moving.

Benefits of IEP/IFSP Facilitation Helps to improve relationships among IEP/IFSP team members and between parent and the LEA Opportunities to resolve conflicts as they arise Encourages parents and the LEA to identify new options More cost-effective procedure than formal due process Less stressful than formal due process Allows all parties to participate fully in IEP or IFSP process

Resolution Meeting Facilitation

Resolution Meeting Facilitation The LEA and parent may have trouble reaching agreement at the meeting because dispute already exists. CADRE is the agency committed to alternate dispute resolution activities. CADRE expressed an interest in states willing to provide facilitators at resolution meetings. ODR accepted the challenge and now offers this cutting-edge early dispute resolution tool.

Resolution Meeting Facilitation Available for all parent-initiated due process requests involving a child with a disability Voluntary and FREE for both sides The LEA and parent schedule the meeting; ODR arranges for the facilitator If agreement is reached and issues resolved, the parent can ask the Hearing Officer to withdraw the due process request.

Role of the Facilitator Helps the parties focus on the child’s needs. Helps to maintain open communication among all parties. Clarifies points of agreement and disagreement. Maintains impartiality. Does not impose a decision for the group May help the parties write an agreement.

Benefits of Resolution Meeting Facilitation Builds and improves relationships Provides opportunities for parties to resolve conflicts which could remove the need for due process Encourages parents and professionals to identify new options Typically less stressful than a due process hearing

Evaluative Conciliation Conference (ECC) ODR committed to providing array of services to resolve special education disputes ODR actively seeking out ways to reduce number of due process requests Early resolution saves time, money, effort The earlier the better to resolve differences Allows focus to be on student’s education and not on litigation

ECC Offers… A neutral “Consultant” to discuss and evaluate both sides’ case A risk assessment regarding the dispute and resolution An opportunity for an impartial look at the merits of a case A perspective on law interpretation and analysis Possible creative solutions

How ECC Works Parties submit brief memo to Consultant, detailing issues Consultant communicates with parties through conference calls and individual call Consultant provides separate and individual evaluation to each side Flexible process to meet everyone’s individual needs

Disclaimer ECC is confidential; Consultant will not share individual discussions or written memos with other side without their permission Consultant will destroy all documents following final conference session Parties agree to not seek to compel Consultant to testify in future proceedings Consultant will not issue any written decisions Statements by Consultant do not constitute legal advice

Impact on Due Process by ECC ECC may be initiated before or after due process is requested Due process timelines not affected by ECC Hearing Officer presiding over active due process will have no knowledge of ECC being used Due process may be withdrawn if ECC results in agreement

Creating Agreement in PA ODR providing conflict resolution training across the state since 2002. In 2008, joined the national effort to build capacity for early dispute resolution through Creating Agreement. PA has been lead state in nation for delivering Creating Agreement. ODR investigating ways to expand outreach, such as on-line training and other cost-effective methods of delivery.

Creating Agreement in PA Key concepts of Creating Agreement Model: Value of Conflict Conflict style Perceptions Conflict resolution styles Positions and interests Listening and communication Power imbalance Cultural reciprocity

Special Education Dispute Resolution Manual The Special Education Dispute Resolution Manual describes the due process hearing procedures in detail. It outlines the mediation and due process procedures for all age groups. This manual is available on ODR’s web page (http://www.odr-pa.org), or can be mailed to any interested party upon request.

Parent Guide (NEW)

Stakeholder Council Diverse membership that includes parents, advocates, attorneys, educators, constituency groups Self sustaining Provides functional input on the services of ODR Interviews hearing officer candidates and makes recommendations

What’s Next? Proactive effort to support and expand dispute resolution and agreement-reaching activities for parents and LEAs Investigate cost-effective technology options to increase public outreach and availability of services.

Consider “The strength of a relationship is not to be measured in the frequency or magnitude of the difficulties encountered, but rather in the ability to resolve them.” -Nicholas Martin

Contact Information www.odr-pa.org Director: Kerry V. Smith, Esquire ksmith@odr-pa.org Commonwealth of Pennsylvania Tom Corbett, Governor Pennsylvania Department of Education Ronald J. Tomalis, Secretary Carolyn C. Dumaresq, Ed.D., Deputy Secretary Office of Elementary and Secondary Education John J. Tommasini, Director Bureau of Special Education Patricia Hozella, Assistant Director Bureau of Special Education Office for Dispute Resolution 6340 Flank Drive Harrisburg, PA 17112-2764 (717) 541-4960 or 1-800-222-3353 TTY Users: PA Relay 711 Email at odr@odr-pa.org Web address www.odr-pa.org

The Office for Dispute Resolution (ODR)