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School Leader Group Proposes Change to Special Education Due Process

Due process hearings are adversarial, expensive, and distracting, says the American Association of School Administrators, and the organization believes it has a fix: a new process that would bring in an outside consultant who would create an education plan for a student with disabilities that parents and a school would have to follow for a mutually agreed-upon period of time before any lawsuits were filed.

In a new report, Rethinking the Special Education Due Process System, the Alexandria, Va.-based association says that the current process is so broken that tinkering around the edges will not fix it.

"Our goal is to start a dialogue about this, together with other groups, to see if we can find a compromise," said Sasha Pudelski, the AASA government affairs manager and the author of the report. And even though Congress is not currently showing any signs of taking up reauthorization of the Individuals with Disabilities Education Act, the time to talk about the issue is now, she says. "I don't think it's unreasonable to think lawmakers would consider this."

However, at least one advocacy group, the Baltimore-based Council of Parent Attorneys and Advocates, sees the AASA proposal as an attack on parents.

"AASA contends the due process system is inequitable and unpopular. The fix to inequality is not to do away with due process of law," said Denise Marshall, the executive director of the organization.

And S. James Rosenfeld, the director of the National Academy for IDEA Administrative Law Judges and Hearing Officers, also said the document outlining the proposal was "surprisingly insensitive" to the needs of children with disabilities and their families.

Due Process Background

When schools and parents cannot come to an agreement over the educational program for a student with disabilities, federal special education law calls for a "due process hearing"—both sides bring together their experts and try to hammer out a compromise before an independent hearing officer.

The district complaints about due process have already been outlined, but parents have complained about them too, saying that they lack the resources that a school district has to pull together legal representation and expert witnesses. The 2004 reauthorization of the IDEA created another step before due process by mandating a mediation session before either side could proceed to litigation.

However, despite the discontent surrounding due process, it's a relatively rare process in most states. A 2010 report in the Journal of Disability Policy Studies found that in 2008-09, there were 2,033 due process hearings in the country. Eight-five percent of them were in just five states or cities: the District of Columbia, New York state, California, New Jersey, and Pennsylvania. The number of due process hearings overall appears to be on a downward trend, that paper suggested.

Massachusetts' Model

AASA's suggestion of a "consultant IEP" drafted by an impartial person is already underway on a voluntary basis in Massachusetts. In 2009, the state-funded "SpedEx" program started providing consultants upon request from parents or school districts. So far, 17 cases have been heard, and only one has proceeded to a due process hearing.

In the SpedEx model, neither side is obligated to follow the suggestions of the consultant, who is paid by the state, said David Scanlon, the SpedEx administrator and an associate professor of special education at Boston College. However their work has been seen as valuable enough that districts now are asking for a consultant at the same rate as parents.

The voluntary nature of the program differs from the AASA proposal, which would require both parties to follow the recommendations of the consultant. In contrast, Scanlon said, in the SpedEx model "we stress the word 'consult.' We tell them that a consultant will be offering a recommendation, and the parties will be left to resolve their dispute."

But even with that neutrality, Scanlon said some parents have said they don't want consultants with school experience, even if their experience is in a different district, for fear that the consultant will be biased towards a district.

SpedEx does not measure its own success by whether one side or the other prevails. By the time that parties get to requesting a consultant, there's usually acrimony that has built. SpedEx is a good option to try to get schools and parents on a better footing, Scanlon said.

Maintaining Rights

Pudelski, with AASA, says that her group's proposal is not meant to take away the right of parents to sue districts if they are displeased with an IEP. Under the proposal, parents would still be able to do so after following the consultant IEP for a certain amount of time.

But due process is "taking precious dollars away from the educational process itself, when we are facing ... budget cuts," she said. A consultant's proposed education plan might not be to a district's liking, but they're willing to take that chance.

"This is a much more child-focused idea," she said.

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