OSEP Rules re Mediation and Consent Revocation

Seal of the United States Department of Education (Photo credit: Wikipedia)

I am a fan of mediation as a mechanism for resolving special education disputes. Unlike due process hearings or state complaints, mediation is well suited to deal with the relationship issues that arise in these conflicts.  We are talking about the education of a child, and as we know, it takes a village...

You can hear and actually see me address this topic and others as a part of "Voices From the Field," a collection of viewpoints from people in the special education dispute resolution field. The videos are located on the CADRE website.  You can find mine here.

The federal Office of Special Education Programs has reiterated that IDEA mediation cannot be used in the situation where a parent revokes consent for special education services.  The regs already say that, but I wondered whether mediation could be used if the goal was not to override the parent, but instead to insure that the revocation decision was based upon informed consent if the parents agreed.  OSEP said no, that IDEA mediation could not be used even if the parents agree.  Letter to Gerl (OSEP June 6, 2012).  By the way, this is the second Letter to Gerl so now I'm really famous! Autographs are available!

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• Mediation and Consent Revication - Revisited

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• OSEP Wants You! Results Driven Accountability

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• More Thoughts on Dispute Resolution; Tech Update

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• Procedural Safeguards - The Series Part X

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Breaking News: New GAO Report Charter Schools & Kids With Disabilities

Seal of the General Accounting Office, from 1921 until being renamed in 2004. (Photo credit: Wikipedia)

In a new report, the federal Government Accountability Office, nee the General Accounting Office, has found that charter schools enroll a smaller percentage of children with disabilities than public schools do.  In school year 2009-2010, about 11% of children enrolled in public schools were children with disabilities.  During the same period, about 8% of children enrolled in charter schools had disabilities.

The authors of the report are unsure why the charter schools numbers were lower and do not attribute any conclusion, but critics have charged that some charters do not accept enough children with disabilities.  See, Weber, Mark C., Special Education from the (Damp) Ground Up: Children with Disabilities in a Charter School-Dependent Educational System (October 12, 2009). Loyola Journal of Public Interest Law, Forthcoming. Available at SSRN: http://ssrn.com/abstract=1487667;  Charters, Students With Disabilities Need Not Apply,” by Prof. Thomas Herir, (op-ed piece) Education Week online January 25, 2010, http://www.edweek.org/ew/articles/2010/01/27/19hehir_ep.h29.html?tkn=QQNC6AY97%2B01O7%2Bu4nwLnioyJY%2BAvdDbAtIU

As always, you should read the report yourself.  You can read the entire GAO report here.  A summary is available here.

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• In Charter Schools, Fewer With Disabilities

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Mediation and Consent Revocation - Revisited

Mediation Headquarters (Photo credit: Aaron Landry)

I am a shameless advocate of mediation.  I know that it has its detractors, even among some groups of lawyers. I remember that certain groups of plaintiffs lawyers considered mediation, as well as arbitration and anything else that was a part of ADR (alternative dispute resolution)  was  bad.

But the more I see of dispute resolution in special education, and I have seen a lot, the more I am convinced that mediation is better than the alternatives.  Mediation is best suited to help fix the long term relationship between a family and school personnel.

When the new consent revocation rules were adopted by OSEP on the last day of the previous presidential administration, I was surprised that mediation was removed as an option when consent is being revoked.OSEP has recently reaffirmed that mediation is not an option under those circumstances.  More on that next week.

For today let me just say- too bad.

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• Mediator could hear disputes on public records

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• Procedural Safeguards - The Series Part VII

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• The Benefits of Alternative Dispute Resolution

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• ADR Week is July 16-20

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Boise is Beautiful

Greetings from beautiful Boise, Idaho.



I'm here for a training. Great town.



PS: this post was made from my phone. JG

Sent from my BlackBerry® wireless device from U.S. Cellular

Procedural Safeguards The Series: Part XI

Old gavel and court minutes displayed at the Minnesota Judicial Center (Photo credit: Wikipedia)

This is the eleventh installment in a multi-part series on procedural safeguards under the federal special education law, the Individuals With Disabilities Education Act. I work a lot in this area, so it is near and dear to my heart. Despite the importance of procedural safeguards. however, many issues in this area are misunderstood. I hope that all of the different types of special education stakeholders who read this blog find the information in this series helpful.

Procedural Violations


Section 615 (f)(3)(E) provides that the decision of the hearing officer must be on substantive grounds. Moreover, this section also provides that in matters alleging a procedural violation, a hearing officer may only find a denial of FAPE if the procedural inadequacies impede FAPE; or significantly impede the parents’ opportunity to participate; or cause a deprivation of educational benefits. Many courts had already read the old IDEA to the same effect. For example, see, D. L. ex. rel. J. L. v. Unified Sch. Dist. 42 IDELR 139 (Tenth Cir. 2004); M. L. v. Federal Way Sch. Dist. 39 IDELR 236 (Ninth Cir. 2003); and Gadsby v. Grasmick 25 IDELR 621 (Fourth Cir. 1997). These rulings are now codified in the statute.

During the hearing in cases alleging a procedural violation, the hearing officer will have to carefully rule on evidentiary objections to ensure that evidence connecting the procedural violation to one of the specified grounds is forthcoming. In cases in which a party is not represented by counsel, the matter is complicated by the hearing officer’s duty to make a complete record. In such cases, the hearing officer will likely ask a number of questions of the unrepresented party to determine the result of the alleged procedural violations or the effect of said procedural violations upon FAPE, the opportunity of the parents to participate in the process, or the deprivation of educational benefit.

OSEP has clarified that the requirement that a hearing officer base his decision on substantive grounds applies only to cases alleging denial of FAPE; a hearing officer still has jurisdiction over LRE cases and other matters alleging issues involving identification, evaluation and placement. 71 Fed. Register No. 156 at pages 46705-06 (August 14, 2006). The new amendment does not affect these types of cases.

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• The Rowley Standard for FAPE - Are the Bullying Cases Changing the Standard? Part II

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• The Rowley Standard for FAPE - Are the Bullying Cases Changing the Standard? Part I

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• Procedural Safeguards - The Series - Part VII

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• Procedural Safeguards - The Series Part IX

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• Procedural Safeguards - The Series Part VII

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• Procedural Safeguards - The Series Part VIII

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More From GAO Bulling Report

Logo of the United States Government Accountability Office. (Photo credit: Wikipedia)

The brand new Government Accountability Office report on school bullying is loaded with information. You should take a look at it.  Here are some of the items from the report.

Bullying at school is pervasive.  After reviewing the research on school bullying, the report notes that between 20 an 28 percent of student report that they have been bullied.  That number is way high!

Bullying is costly. Among the results of peer bullying are the following: suicide; violent actions against others; depression; loneliness; low self-esteem; anxiety and higher risk for physical health consequences; and increased behavioral issues.

From a special education law perspective, the report notes that the literature finds that victims of bullying often have academic difficulties.

49 states currently have bullying statutes, but the protections, and even the definition of bullying, vary widely from state to state.

The GAO applauds some of the collaborative efforts of the Department of Education and other federal agencies, such as the joint website Stop Bullying. But the GAO felt that the agencies could coordinate their efforts better and develop an assessment of the protections afforded by the various state civil rights laws.

Here is a summary of the GAO report.

You can read the entire 64 page GAO report here.

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Breaking News: GAO Issues Report on School Bullying

David M. Walker (U.S. Comptroller General) (Photo credit: Wikipedia)

The federal Government Accountability Office has issued a report today pertaining to school bullying.  The title of the report is "SCHOOL BULLYING:  Extent of Legal Protections for Vulnerable Groups Needs to Be More Fully Assessed." This relates to the current hot button issue in special education law although bullying affects more than just special education students. The GAO reviewed research on the prevalence and effects on victims; and analyzed state bullying laws, and school district bullying policies.

After looking into the school bullying problem, the GAO made several recommendations. The recommendations included: that the Department of Education compile information about state civil rights laws and procedures that relate to bullying, and inform complainants about state legal options; that the Departments of Education, HHS, and Justice develop information about bullied demographic groups in their surveys; and assess whether legal protections are adequate for these groups.  Here is a summary of the GAO report.

You can read the entire 64 page GAO report here.

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