The Resolution Process in Part B, in Detail

September 2012
A legacy resource from NICHCY

This information in Spanish | Esta información en español

Many approaches exist for resolving disputes, including the formal one to be discussed now—the resolution meeting. The resolution process is a key change in IDEA, added in its 2004 reauthorization. What IDEA requires is straightforward:  The LEA must convene a resolution meeting when a parent files a due process complaint. Its purpose is to give the parties the opportunity to meet and attempt to resolve the issues without holding a due process hearing.

Unlike the mediation process, the resolution process is not voluntary. When the LEA receives a parent’s due process complaint, it must, within 15 days (and before it convenes a due process hearing), convene a resolution meeting unless both parties agree in writing to waive the meeting or both agree to use the mediation process instead. Convening resolution meeting is not required if the public agency (meaning, the school system) files the due process complaint.

Find out the details of the resolution process, including these issues:

• Purpose of the meeting
• Participants
• May attorneys take part?
• Failure to participate
• Is confidentiality required?
• Must a written agreement result?
• Timelines

To read IDEA’s exact words, visit IDEA’s Regulations on Resolution.

What’s the purpose of the resolution meeting?

IDEA makes the purpose of the resolution meeting very clear: The meeting provides an opportunity “for the parent of the child to discuss their 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. [§300.510(a)(2)]

You might wonder if the resolution meeting can be waived? Yes, it can be, under the two circumstances mentioned above.

• when the parent and LEA agree in writing to waive the meeting, and
• when the parent and LEA agree to use the mediation process in §300.506. [§300.510(a)(3)]

How the two parties come to agreement that they’ll waive the resolution meeting is left to the discretion of states and LEAs. Neither can unilaterally (that is, on their own) waive the meeting.

Who comes to the resolution meeting?

The beginning of §300.510 states who must be involved in the resolution meeting: the parents and relevant member or members of the IEP team who have specific knowledge of the facts identified in the parent’s due process complaint. The group must include a representative of the public agency who has decision-making authority on behalf of that agency [§300.510(a)(1)].

And who decides which IEP team member(s) are “relevant?” IDEA is very clear: The parent and the LEA together determine the relevant member or members of the IEP team that will attend the resolution meeting. Furthermore, “relevant” members will be those with “specific knowledge of the facts identified in the parent’s due process complaint” [§300.510(a)(1)].

If the LEA agrees, a parent may bring “other participants” to the resolution meeting, such as an advocate or family friend. This is because the IEP team may include, at the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child [§300.321(a)(6)].

The Department of Education elaborated on the finer points of determining who will attend the resolution meeting, saying:

We urge LEAs and parents to act cooperatively in determining who will attend the resolution meeting, as a resolution meeting is unlikely to result in any resolution of the dispute if the parties cannot even agree on who should attend. The parties should keep in mind that the resolution process offers a valuable chance to resolve disputes before expending what can be considerable time and money in due process hearings. (71 Fed. Reg. 46701)

May attorneys take part in the resolution meeting?

The LEA’s attorney may not be included in the meeting unless an attorney accompanies the parent [§300.510(a)(1)(ii)].

Note that, in States that allow non-attorneys to represent parties in due process hearings, a non-attorney advocate or qualified representative may accompany a parent to a resolution meeting and subsequently represent that parent at the due process hearing.  In these circumstances an LEA attorney would not be allowed to attend the resolution meeting because the qualified representative is not an attorney.  In such situations, the LEA’s non-attorney representative to the resolution meeting should be equipped with the knowledge and skills needed to properly represent the interests of the school district.

You may wonder if the parents have to give the LEA advanced notice that they’re going to bring their attorney to the resolution meeting. IDEA doesn’t say. But the Department says the following:

[I]t would not be in the interest of the parent to withhold such information prior to a resolution meeting so as to appear at the resolution meeting with an attorney without advance notice to the public agency. In such cases, the public agency could refuse to hold the resolution meeting until it could arrange the attendance of its attorney (within the 15-day period). The parent would incur additional expenses from having to bring their attorney to two resolution meetings. (71 Fed. Reg. 46701)

 What happens if the parties do not follow through on the requirement to participate in the resolution meeting?

The answer to this question is: It will depend on whether the party who does not participate is the parent or the school system.

When the nonparticipant is the parent. Before holding a resolution meeting, the LEA must make reasonable efforts to obtain the parent’s participation and must document those efforts [§300.322(d)]. Such documentation includes keeping:

• detailed records of calls attempted and conducts and the results of those calls;
• copies of correspondence to the parents and any responses;
• detailed records of visits to the parent’s home or place of employment and results of those visits.

Now, let’s say that, despite those efforts, the LEA convenes the meeting as required and the parent doesn’t show up and participate. What happens? In keeping with §300.510(b)(4),  the U.S. Department of Education (2006) states:

[T]he LEA would need to continue to make diligent efforts throughout the remainder of the 30-day resolution period to convince the parent to participate in the resolution meeting. If, however, at the end of the 30-day resolution period, the LEA is still unable to convince the parent to participate in the resolution meeting, we believe that an LEA should be able to seek intervention by a hearing officer to dismiss the complaint. (71 Fed. Reg. 46702)

An additional provision needs to be mentioned here as well, because it speaks to the importance of parents participating in the resolution meeting and what could happen if they do not attend. As §300.510(b)(3) states:

(3) Except where the parties have jointly agreed to waive the resolution process or to use mediation… the failure of the parent filing a due process complaint to participate in the resolution meeting will delay the timelines for the resolution process and due process hearing until the meeting is held.

In other words: The parent’s failure to participate in the resolution meeting will delay the timelines associated with the resolution period and the due process hearing. A due process hearing cannot be convened until the resolution meeting is held.

Of course, sometimes circumstances beyond a parent’s control (e.g., military service or hospitalization) may prevent a parent from attending a resolution meeting in person. The Department acknowledges the reality of circumstances such as these and indicates that it would be appropriate for LEAs to offer to use alternative means to ensure parent participation in the resolution meeting:

If the LEA notifies the parent of its intent to schedule a resolution meeting within 15 days of receiving notice of the parent’s due process complaint, 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 those described in §300.328, including videoconferences or conference telephone calls, subject to the parent’s agreement. (71 Fed. Reg. 46701)

When the nonparticipant is the public agency. IDEA also addresses what happens if the LEA does not follow through on its responsibility for the resolution meeting, either by failing to hold the meeting within 15 days of being notifed that the parent has filed a due process complaint or by failing to participate in the resolution meeting. If this occurs, “. . . the parent may seek the intervention of a hearing officer to begin the due process hearing timeline” [§300.510(b)(5)].

As the Department (2009) explains further in Questions and Answers on Procedural Safeguards and Due Process Procedures for Parents and Children with Disabilities, in either case, “[t]he hearing officer’s intervention will be necessary to either dismiss the complaint or to commence the hearing, depending on the circumstances” (see Question D-8).

 Must the discussions during the resolution meeting be kept confidential?

IDEA is silent on the issue of keeping matters discussed during resolution meetings confidential. (You may recall when we discussed mediation, IDEA requires that mediation discussions be kept confidential.) This means that confidentiality is not required and a state may not, in its own stead, require participants to keep discussions in a resolution meeting confidential. Nor can a state make a confidentiality agreement a condition of the parent participating in such a meeting. Of course, both parties could agree to sign a confidentiality agreement, if they both so desire. (71 Fed. Reg. 46704)

The confidentiality provisions in the Family Educational Rights and Privacy Act (FERPA), however, continue to apply. (U.S. Department of Education, 2009, see Question D-3)

If successful, must the resolution meeting result in a written agreement?

Yes. IDEA addresses this in §300.510(d) and (e), which can be summarized as follows:

If a resolution to the dispute is reached at the resolution meeting, the parent and LEA must enter into a legally binding agreement.

The agreement must be signed by the parent and a public agency representative with “the authority to bind the agency.”

The agreement is enforceable in any State court of competent jurisdiction (a State court that has authority to hear this type of case) or in a district court of the United States.

Either party (the parent or the LEA) may void the agreement within three business days of the date the agreement was signed.

Additionally, the resolution agreement may be enforceable by the SEA itself, if the state has developed other mechanisms for enforcing written settlement agreements reached at resolution meetings (such as the state complaint procedures). Note the word if—a state is not required to develop such mechanisms. However, if the state has developed them, it may not require a party to use those mechanisms or limit the parties’ right to seek enforcement through an appropriate court. (§300.537)

What about timelines?

As you know, a 30-day resolution period begins upon the filing of a due process complaint. In other words, the parents and the LEA have 30 days in which to try to resolve the parent’s due process complaint without initiating a due process hearing. If the dispute cannot be resolved during that period, then a due process hearing—a more formal, often costly legal proceeding—may occur.

A different timeline attaches to due process hearings: 45 days to reach a decision in the hearing. This timeline starts ticking the day after one of the following events:

• Both parties agree in writing to waive the resolution meeting;
• Both parties agree in writing that no agreement is possible (this must occur after either the mediation or resolution meeting starts but before the 30-day resolution period ends); or
• Both parties agree in writing to continue the mediation at the end of the 30-day resolution period, but later, the parent or public agency withdraws from the mediation process. [§300.510(c)(3)]

Thus, the 30-day resolution period is not set in stone. Flexibility is necessary to accommodate the choices that the disputing parties may make about which approach to use in resolving the issues in the due process complaint. For example, the LEA and the parent may agree to waive the resolution meeting, which impacts timelines for the resolution period and, like dominos going down, the 45-day timeline for due process decisions. As the Department’s (2009) Model Form for the procedural safeguards notice states: “The 45-calendar-day timeline for issuing a final due process hearing decision…begins at the expiration of the 30-calendar-day resolution period” (pp. 22-23), unless adjustments are made to the 30-calendar-day resolution period.

We go into detail here, because timelines established in IDEA (or by a state) are usually a subject of great interest and, indeed, importance.

Conclusion

If the parents and the LEA fail to reach an agreement during the resolution process (or agree to waive the process altogether), the next step will be the due process hearing. This crucial procedural safeguard is discussed in the next article in this section of CPIR’s Repository of Resources.

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