School District=s are obligated to meet a large number of procedural and substantive requirements with regard to the provision of a FAPE. The reality is that no school district will have an unblemished record of perfect procedural and substantive compliance for all students. A District is only as competent as its staff, and as human beings, they are bound to make procedural and substantive errors.

AHonesty=s the Best Policy@ - Cervantes

There is nothing to be gained by denying the existence of an obvious error. Denying the existence of an error frustrates the parents and prevents the District from rectifying the error. In fact, failing to admit an obvious procedural error can sometimes compound a District=s exposure. For example, refusing to admit and correct an error with regard to Written Prior Notice can ultimately invalidate the District=s substantive decision which was the subject of the notice.

One of the obvious benefits to admitting an error is that you have an opportunity to make it right. The law does not generally penalize a school district for correcting a procedural error. In fact, before a court will penalize a district for an error, it will inquire as to whether or not the student has been deprived of FAPE or whether the parents have been denied an opportunity to substantively participate in the decision-making process. If the student has not been deprived of their FAPE and the parents have had a substantive opportunity to participate in the decision-making process, it is unlikely the court will invalidate the district=s substantive decision. See Roland M. v. Concord School Committee, 16 EHLR 1129 (1^st Cir. 1990) (an IEP will not be set aside absent Asome rational basis to believe the procedural inadequacies compromised the pupil=s right to an appropriate education, seriously hampered the parents= opportunity to participate in the formulation process, or caused a deprivation of educational benefits.@).

B. The Parents Have Unmet Expectations Regarding Their Child=s Performance

AOft the expectation fails, and most oft there, where most it promises.@ - Shakespeare, Alls well that Ends Well.

Responsible parents establish personal expectations with regard to their child=s educational performance. The IEP Team plays a pivotal role in predicting these expectations. Unfortunately, the Team that establishes the expectations is rarely the Team that implements the IEP. When expectations are unmet, there is a natural tendency to second guess both the Team and the IEP. While the law does not view an IEP as a contract, the reality is that an IEP gives rise to certain expectations. When a child does not meet the IEP expectations, parents will question whether or not the IEP was appropriate, and whether the district fell short of its duty to fully implement the IEP.

The paramount antidote for unmet expectations in an IEP is accurate assessment. The second purpose of the evaluation process is to determine the educational needs of the child.⁽¹⁾ Unmet expectations can easily arise from inadequate evaluation information and from a failure on the part of evaluators to make accurate educational recommendations as to the manner in which a child=s educational needs can be met.

There is a tendency on the part of some educators to project the utmost optimism and, on occasion, to minimize the severity of a disability. In all cases, the legally mandated goal is the child=s success in accessing the general curriculum, and this requirement can also drive a district to set unrealistic objectives and goals.

The price of anything less than honesty is the creation of inappropriate expectations regarding a child=s performance. The end result is that the district aids and abets the parents in forming unrealistic expectations regarding their child=s performance, and sets the child up for failure, and sets the parties up for conflict.

AOnly the Educated are Free@ - Epictetus

In addition, uninformed parents can fall victim to Aurban myths@ surrounding their rights. For example, uninformed parents frequently assert the right to an independent evaluation even before the district has conducted its preliminary evaluation. This lack of information foments unnecessary conflict.

ANobuddy ever fergits where he buried a hatchet@ - Frank Mckinney AKin@ Hubbard. AAbe Martins Broadcast@ (1930)

Therefore, it is no surprise that district personnel can Aburn out,@ and develop a Asiege mentality.@ The resulting product can be discourtesy and non-responsiveness to parents.

The obvious answer to burn out and pressure is to ensure that your life extends beyond your career. Regrettably, most individuals have a Afunctional identity;@ that is their identity turns on what they do for a living. The antidote to this problem is to develop an identity which extends beyond one=s career and to ensure that your life is not monodimensional. This greatly reduces the likelihood of burn out.

AWe share our rights with those who disagree with us@ Wendell Wilkie.

The primary reason for the perpetuation of disagreement between reasonable people is the lack of communication. When two reasonable parties understand the basis for the other party=s position, there is a greater likelihood of resolution. Rationally based disputes are usually resolved through communication therefore communication should occur at the earliest possible moment.

Sometimes the parties simply lack the fundamental skills necessary to communicate their desires and to resolve conflict. There are a plethora of reasons why parents may be ill-equipped to resolve their child=s needs. School districts encounter parents with serious mental illness, drug addiction, alcoholism and other impairments, all of which make it extremely difficult for the parent to function, let alone resolve educational matters for their child.

The purpose of alternative dispute resolution is Ato encourage informal resolution of differences of opinion regarding a provision of special education.@ See NH RSA 186-C:23 (I). The purpose of this section is to review the tools available to the educator for alternative dispute resolution.

Parents are considered a member of the IEP Team (see 34 CFR 300.344 (a)). In addition, parents have the right to participate in IEP team meetings. See 34 CFR 300.501 (b). Therefore, the IEP team process represents the first opportunity for a district to engage in dispute resolution. While the goal of the team meeting is to build consensus, it is proper for parents and other team members to advocate for their respective views as to a child=s educational needs. The role of the case manager is most effectively fulfilled when the case manager facilitates this dialogue.

	The team Aresolves@ a matter without sufficient LEA input as to available resources;
	The team gets bogged down in multiple team meetings;
	By compromising on one issue, such as length and content of an IEP, the team inadvertently compromises its position on placement;
	Team members are drawn into conflict.

The benefit to early dispute resolution through the administrator is that this form of dispute resolution rarely results in exposure for attorneys= fees and costs.

The best negotiated resolution is one which can be accommodated within the context of the IEP and placement documents. The special education administrator should be wary of Aside letter@ agreements. These agreements may alleviate one year=s pressure in exchange for ensuing years of administrative misery. Whenever a special education administrator resolves a case she should consider the long-term ramifications of the settlement and seek the advice of legal counsel in documenting any settlement outside of the IEP development and placement process.

NH RSA 186-C:23 (a) provides that Aeach school district in New Hampshire is encouraged to develop options for alternative dispute resolutions which can be utilized at the local district level.@ The statute provides that Aa plan outlining these methods may be submitted to the Department of Education for review.@ Id. The Department shall provide technical assistance at the request of the school district in developing and implementing these alternative dispute resolution options. Id.

	any settlement agreement probably will not create attorneys= fees exposure;
	the resolution process can be expedited; and
	the process is local.

The neutral conference is a creature of statutory and regulatory law. NH RSA 186-C:23 (b) defines the neutral conference as Aan informal abbreviated presentation of case facts and issues by the parties to a neutral who is responsible for reviewing the strengths and weaknesses of the case and issuing a recommendation.@ NH RSA 186-C:23 (b) and Ed. 215.02 set forth the details of conducting a neutral conference. The key operative component of a neutral conference is that, Aat the conclusion of the oral statements, the neutral shall issue an oral opinion to the parties. The opinion shall contain a suggested settlement or disposition and the reasons therefore.@ See NH RSA 186-C:23 (b) (II).

A neutral conference is one of the least effective tools for alternative dispute resolution. First, it requires a mutual respect on the part of both parties in the opinion of the neutral. Second, it turns on the effectiveness of an advocate=s oral presentation rather than substantive evidence. Third, it requires little investment on the part of the parties and the parties are free to reject the neutral=s recommendation. As a matter of practice, individuals trained in alternative dispute resolution are trained to avoid neutral conferences and to convince the parties to elect mediation.

	The parties are in agreement with the resolution;
	The agreement provides a foundation for building future good will;
	The transaction cost is reduced;
	The likelihood of an adversarial relationship is reduced;
	There is an opportunity for direct communication between the parties which may reduce misunderstanding;
	A properly handled mediation may reduce attorneys= fees exposure.

An important aspect to mediation is the opportunity for the parties to communicate directly with one another regarding their respective positions. In most cases, parents desire an opportunity to share with the district their heart and mind with regard to the child=s needs. This dialogue not only apprises the parties of their respective positions but also constitutes the first step towards problem resolution.

While some lawyers may advocate mediation for purposes of cheap and easy pre-hearing Adiscovery,@ the use of mediation for purposes other than settlement discussion represents the height of bad faith. If a district gains the reputation of simply attending mediation for the purpose of gleaning information from parents, it will soon garner a reputation of not treating parents and children in good faith. Mediation should never be used as a tool for anything other than settlement discussion.

Beware of the possibility that, (while the issue remains open as to whether or not mediators will be approving settlement agreements), a mediator=s signature on a settlement agreement may be sufficient to trigger an attorneys= fee exposure on the part of the district. At this point, it is best practice for the parties to squarely address the question of attorneys= fees within the context of their mediated settlement.

	identification;
	evaluation;
	educational placement; or
	the provision of FAPE to the child.

	Inform each parent of their right to request a due process hearing, appeal the matters described in Ed. 1128.03 (a);
	Provide each parent with the procedural safeguards notice required by Federal Regulation; and
	Inform the parents of any low-cost legal services and other relevant services available in the area.

Ed. 1128.12 outlines the Department of Education=s responsibilities with regard to the administrative due process hearing. Ed. 1128.12 (a) provides that ADR prehearing conferences and due process hearings are to be scheduled immediately upon receipt of mutually agreeable dates from the parties or if after two business days post-filing the parties do not supply mutually agreeable dates, the Office of Legislation and Hearings shall supply a schedule to the parties of available dates.

	The time and place of the optional ADR session and prehearing conference;
	The time, place and nature of the administrative due process hearing;
	The legal authority under which the hearing is to be held;
	The particular sections of the statutes and rules involved;
	A short and plain statement of the issues invovled; and
	The party=s right to have legal counsel at their expense.

Finally, the Department of Education is also required to appoint a hearing officer Awho shall be an attorney or other individual with knowledge of State and Federal special education law to preside at each administrative due process hearing.@

Is taking this matter to due process in the best interest of the child? Is taking this matter to due process in the best interest of the district? Is taking this matter to due process in the best interest of the tax payers? When I engage in a cost benefit analysis does the potential reward outweigh the potential risk?

Ed. 1128.14 imposes a good faith duty on the part of each party to make a Acomplete response to requests, as soon as practicable, for the voluntary production of information.@ When a dispute arises between the parties with regard to voluntary production of information, the execution of releases, or documents, any party may file a motion to compel production under Ed. 1128.15.

Ed. 1128.15 addresses motions to compel production of information. The standard for granting or denying a motion to compel turns on whether or not the moving party has demonstrated that such requests for information are relevant to the issues described in the hearing notice and are necessary for a Afull and fair presentation of the evidence at the hearing.@ Motions for production are to be filed at least fifteen (15) days before the date of the hearing or as soon as possible after receiving notice of the hearing. An objection must be filed within five (5) days of the date of receipt of the motion.

The party that has initiated the request for a hearing will generally be required to present their case first unless the hearing officer determines that the change in the order of presentation would not materially prejudice any party=s right to a full and fair hearing and:

	The hearing would proceed in a more timely manner if the party not initiating the hearing presents their case first; or
	The hearing would proceed in a more efficient manner if the party not initiating the hearing presents their case first.

	Each party is given one day to present their case unless additional time is necessary for a full, fair disclosure of the facts necessary to arrive at a conclusion;
	The hearing officer shall limit the number of additional witnesses to eliminate redundant, cumulative or irrelevant testimony; and
	The hearing officer shall limit examination of a witness by either party to avoid redundant, cumulative or irrelevant testimony.

A party aggrieved by a final decision of a due process hearing officer may appeal the decision to a Acourt@ of competent jurisdiction. New Hampshire has established a one hundred twenty (120) day statute of limitation for filing an appeal with the court. NH RSA 186-C:16-b, IV.

D. Attorney=s Fees

Section 300.513 of the Federal Regulations governs the award of attorneys= fees for any action or proceeding brought to enforce the provisions of the IDEA and the regulations enacted to interpret the IDEA. This Regulation grants a court broad authority, in its discretion, to award reasonable attorneys= fees as part of the cost to the parents of a child with a disability who is the prevailing party. Section 300.513 (a). However, the Regulations also contain a prohibition on awards of attorneys= fees and related costs for certain services, and a provision for reducing the amount of attorneys= fees that may be recovered.

Of particular interest is the potential prohibition on awarding attorneys= fees and costs for services performed subsequent to the time of a written offer of settlement to a parent. This Regulation states that if: (1) the offer is made more than 10 days before the proceeding begins; (2) the offer is not accepted within 10 days; and (3) the court or administrative hearing officer finds that the relief finally obtained by the parent is not more favorable to the parent than the offer of settlement, then fees may not be awarded. While this may make it tempting for a school district to offer a settlement which is substantially less favorable than the relief the parent is seeking, another provision of this Regulation prevents the abuse of this section. Section 300.513 (c)(3) states that a court may award attorneys= fees and costs to a parent who is a prevailing party and who was Asubstantially justified@ in rejecting the settlement offer. The Regulations do not provide any guidance for what criteria will be used to determine whether a parent was Asubstantially@ justified in rejecting a settlement offer. This term could be interpreted such that if a court finds that a parent was reasonable in the belief that the parent could prevail in court, or through a state due process hearing, the parent was justified in rejecting the settlement offer.

There are few circumstances where a district should go to due process without having taken advantage of the written settlement offer. An offer that reasonably calculates the likely result can dramatically decrease the district=s transaction costs.

On the other hand, the Regulation also specifically allows the court to reduce the award of attorneys= fees if the court finds that the parent unreasonably protracted the final resolution of the controversy, that the legal fees charged were not reasonable, or that the attorney representing the parent did not provide the school district with appropriate information in the due process complaint. Section 300.513 (c)(4). If, however, the court finds that the state or school district unreasonably protracted the final resolution of the action or proceeding, or violated Section 615 of the IDEA, the court may not reduce the amount of attorneys= fees awarded to a parent.

During the pendency of any administrative due process or court proceeding, unless the State or district and the parents of the child agree otherwise, the child involved in the complaint must remain in his or her current educational placement. Section 300.514; Ed 1128.23. This requirement is generally referred to as the Astay put@ provision. If the complaint involves an initial admission to a public school, the child, with consent of the parents, must be placed in the public school until final resolution of all of the proceedings. Id. If a parent prevails at a hearing and the decision involves a change of placement, that new placement becomes the Astay-put@ placement. The District must place the child in accord with the decision, even if the District then appeals the decision. See Ed 1128.23 (c).

Historically the Department of Education=s complaint process was usually avoided as a dispute resolution tool. The remedies available under the complaint process were limited and there was an inefficient and unexercised right of appeal to the United States Department of Education. With the reauthorization, states were required to expand their complaint handling process to permit the state agency to award monetary reimbursement or Aother corrective action appropriate to meet the needs of the child such as compensatory education.@ See 34 CFR 300.660 (b).

Unfortunately, the application of Ed. 200's appeal rights is somewhat ambiguous. On one hand Ed. 203.01 permits a person aggrieved by a decision of a Apublic education official@ to request the State Board to conduct an appeal hearing, on the other hand, that same provision goes on to state that decisions made under RSA 186-C relative to special education shall be appealed directly to a court of competent jurisdiction. The first issue with regard to appellate rights then is whether or not a final complaint finding by the Commissioner should be appealed to the State Board of Education before pursuing a court appeal or, in the alternative, an appeal should be taken directly to the Supreme Court. In addition, there is the open question as to whether or not a complaint decision requires an appeal to be taken to either the State superior court or the United States District Court (which have IDEA jurisdiction) or the State Supreme Court which has jurisdiction under the Administrative Procedure Act. The Administrative Procedure Act (RSA 541-A) supports the conclusion that the appeal would be to the Supreme Court. Parties should consult their own legal counsel on this issue.

It is the task of the Commissioner to then issue a written decision that addresses each allegation in the complaint. The written decision must include the following:

In short, the Commissioner has the authority to award both child specific and systemic remedies.

Complaints are to be resolved within sixty (60) days of receipt of the complaint. However, the sixty-day time frame may be extended up to ninety (90) days by the Commissioner provided certain Federal regulatory conditions are met.

The following tools and rules, while not comprehensive, will assist the educator in properly handling a complaint.

Unlike the complaints of yesteryear, these complaints contain the seeds of serious consequences. There is no substitute for consultation with counsel regarding the manner in which to respond to a complaint.

In doing such, you should ask the following questions:

It is important that you discern early on whether or not a complaint has merit. There is no substitute for internally investigating a complaint. This investigation will constitute the basis for your prompt and immediate response.

There is no prohibition against responding to a complaint. In fact, it does not make sense to allow the investigator to craft their own response. Instead, the educator should work with the assistance of counsel to provide a comprehensive and thorough written response to a complaint. In crafting that response, the educator should consider such questions as:

A complaint which simply recites the allegation of a pending impartial due process hearing will be stayed pending the result of the due process hearing. The educator should bear in mind that a complaint does not allow for a hearing. If the subject matter of the complaint is also the subject matter of a potential due process hearing, the educator should consult with counsel to determine whether or not it would be prudent to request an impartial due process hearing.

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