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Special Populations
Dispute Resolution
The special education complaint system is designed to ensure that all student with disabilities are provided a free appropriate public education. A complaint can be filed about any entity that provides publicly funded educational services directly to students, that has violated a state or federal special education law or rule.
Before filing a complaint, Louisiana Department of Education (LDE) encourages parents or other persons to first contact the LEAs Director of Special Education, who may be able to help resolve the issue.
The LDE has developed several processes for resolving the disagreement about a child's disability identification or eligibility, evaluation, the level of services or placement, the provision of FAPE, or payment for services obtained: IEP Facilitation, Informal and Formal Complaints, and early Resolution.
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IEP FACILITATION
IEP facilitation is a new dispute resolution method developed by the Louisiana Department of Education. This option is available to parents and school districts when they both agree that it would be valuable to have a neutral person, such as an IEP Facilitator, present at an IEP meeting to assist them in discussing issues regarding your child’s IEP. Typically, an IEP Facilitator is brought in when parents and school district staff are having difficulties communicating with one another regarding the needs of the student.
The IEP Facilitator assists in creating an atmosphere for fair communication and also oversees the successful drafting of an IEP for the student. Either the parent or the school district can request IEP facilitation; however, since the process is voluntary, both sides must agree to use this process. The process will be initiated by a request to the Dispute Resolution Section, at no cost to you or the school district.
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INFORMAL AND FORMAL COMPLAINTS AND EARLY RESOLUTION
Any parent, individual or organization acting on behalf of a student with a disability has a right to file a complaint with the Louisiana Department of Education whenever you, an individual, or organization believes that there exists a violation by the school district of State and Federal law regarding the educational rights of your child, a student with a disability.
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Procedures for Informal Complaints/Early Resolution
It is the policy of the Louisiana Department of Education to encourage and support prompt and effective resolution of any administrative complaint in the least adversarial manner possible. The implementation of the Early Resolution Process (ERP) by each school district draws on the traditional model of parents and school districts working cooperatively in the educational interest of your child to achieve their shared goals of meeting the educational needs of students with disabilities.
1. Informal administrative complaints are procedures developed to allow for district-level resolution prior to the exercise of the Louisiana Department of Education’s supervisory jurisdiction in addressing allegations that a school district is violating a requirement of Part B of the Act.
2. All informal complaints are handled at the local level by the school district’s ERP representative.
3. Informal complaints are verbal complaints.
4. Informal complaints may be made to the Louisiana Department of Education or directly to the school district.
5. Informal complaints made to the Louisiana Department of Education shall only be made through the Louisiana Department of Education’s Intake Coordinator(s) who shall refer the complaint to the ERP representative of the school district immediately, if possible, but not later than two calendar days after receiving the complaint.
6. Within the 15-day resolution period, you and the school district shall sign a resolution agreement or an agreement in writing to extend the resolution period. If no resolution agreement is signed and no extension agreement is signed, the school district’s ERP representative shall provide you with the Department’s explanation of Dispute Resolution Options, acknowledged by written receipt. You may then pursue any other dispute resolution option.
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FORMAL COMPLAINTS
1. Formal administrative complaints are procedures developed under the supervisory jurisdiction of the Louisiana Department of Education to address allegations that the school district is violating a requirement of Part B of the IDEA.
2. Formal complaints must be written and signed. Unless the parties have already attempted informal early resolution on the same issues, the complaint will be forwarded to the school district for an opportunity for local level resolution through the ERP before complaint investigation.
3. A parent, adult student, individual, or organization may file a signed written complaint by U.S. mail, facsimile, email, or TDD with the Louisiana Department of Education.
4. The party filing the complaint shall forward a copy of the complaint to the school district or public agency serving the student at the same time the party files the complaint with the Louisiana Department of Education.
5. The complaint must allege a violation that occurred not more than one year prior to the date that the complaint is received. The Department of Education will provide the school district an opportunity to respond to the complaint and recommend a proposal to resolve the complaint through the ERP and/or provide parents with an opportunity to work with the school district to voluntarily engage in mediation or IEP facilitation.
6. Upon expiration of the resolution period, the complaint is reviewed, and the school district is notified and asked to provide specific information. Depending upon the nature of the complaint, an on-site visit may be made to the school district by the Department of Education. The complainant is given the opportunity to provide additional information to the Department either orally or in writing during the course of the investigation. All relevant information is reviewed, and a determination is made as to whether the school district is violating a requirement of applicable Federal or State statues, regulations or standards. The Department of Education has 60 days from receipt of the complaint or 45 days from the end of the Early Resolution Period to issue a written decision to all parties on each of the allegations of the complaint.
7. Reconsideration of complaint findings - If you belive that the complaint finds are wrong in that it contains an error in one or more findings of fact and/or law, a reconsideration of the investigative findings and decision may be requested, in writing to the LDE's legal division and simultaneously to the other party to the complaint in accordance with the following procedures.
a. For each error submitted for reconsideration, the requestor shall provide the reference number assigned by the LDE to the complaint at issue; the page number of the written decision where such alleged error can be found; highlighted sections of data submitted for investigation that would assert a fact contrary to what is reflected in the written decision; and citations to applicable law, regulations, or jurisprudence, where applicable, to support the alleged error of law; and
b. The requestor shall provide a written explanation that indicates how originally-submitted documentation changes the respective findings(s) of fact or law and/or how the alleged error impacts the conclusion of the LDE with respect to the allegation(s) at issue.
c. Documents and other information not originally submitted regarding the allegations(s) shall not be accepted for review; and
d. Reconsideration requests, including all documentation relevant to the reconsideration request, shall be received by the LDE no later than 10 calendar days after the date of receipt of the investigative report. Should the other party to the complaint wish to respond to the reconsideration request, the response shall be received by the LDE no later than 10 calendar days after the LDE received the original reconsideration request; and
e. Reconsideration requests received by the LDE after the 10 calendar day deadline shall not be reviewed.
f. Reconsideration requests received timely and that meet criteria shall be reviewed by a panel of individuals appointed by the division director and the LDE shall inform the complainant and the public agency of its determinations, in writing, within 30 calendar days from the date the LDE receives the written reconsideration request.
g. Reconsideration request by third parties shall not be accepted.
h. Reconsideration requests shall not be used to delay or deny implementation of FAPE for a student with a disability. The timeline for corrective actions cannot be delayed based on a request for reconsideration.
To request an informal ERP, contact the Louisiana Department of Education,Toll-Free 877-453-2721 or your local school district to obtain ERP representative contact information for your local school district.
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MEDIATION
Mediation is a way to discuss and resolve disagreements between you and the school district with the help of an impartial third person who has been trained in effective mediation techniques. Mediation is a voluntary process, and both you and the school district must agree to participate in order for the mediation session to occur. The mediation sessions are scheduled in a timely manner and held in a location that is convenient to the parties in the dispute.
A mediator does not make decisions; instead, he/she facilitates discussion and decision-making. The discussions in a mediation session are confidential and may not be used as evidence in subsequent due process hearings or civil court proceedings. If the mediation process results in full or partial agreement, the mediator will prepare a written mediation agreement that must be signed by both you and the school’s representative. In addition to describing the things you have agreed to, the mediation agreement will state that all discussions that occurred during the mediation are confidential and may not be used as evidence in a due process hearing or other civil court proceeding. The signed agreement is legally binding on both you and the school and is enforceable in court.
Mediation is available to resolve a disagreement between you and the school district regarding the identification, evaluation, placement, services, or the provision of a FAPE to your child. You may request mediation before, at the same time, or after requesting a due process hearing. Requesting mediation will not prevent or delay a due process hearing, nor will mediation deny any of your other rights. You or the school district may suggest mediation, and it begins when both agree to participate. Participating in mediation is voluntary for both you and the school district. Your right to a due process hearing is not delayed or denied by requesting or declining to participate in mediation.
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How to Initiate the Mediation Process
In order to initiate the process, you or the school district must send the Request for Mediation to the Legal Division. The Legal Division will assign a mediator who will contact both you and the school district to schedule a timely meeting in a convenient location. You may request mediation by calling (225) 342-3572 or by sending written notice by fax to (225) 342-1197 or mailing written notice to the Louisiana Department of Education, P.O. Box 94064, Baton Rouge, Louisiana 70804-9064, Attention: Legal Division.
The Legal Division maintains a list of mediators who are trained, qualified, and knowledgeable about the laws and regulations relating to the provision of special education and related services. A mediator is assigned on a rotational basis.
No employee of the Department of Education, local school district, or other public agency providing special education services is eligible to be a mediator. A mediator must not have any personal or professional conflict
of interest. A mediator is not considered to be an employee solely because he/she is paid to provide this service. The Legal Division bears the cost of the mediation process.
The school district may establish procedures to offer you the opportunity to meet at a convenient time and location to have someone from a parent training center or alternative dispute resolution entity to discuss the benefits of the meditation process when you have opted not to participatein mediation with the school district. However, the Legal Division must approve any procedures established by the school district before they can be implemented, and the procedures cannot be used to delay or deny your right to a due process hearing if you decline to participate in such a meeting. The Legal Division pays for the cost of these meetings.
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DUE PROCESS HEARING, APPEAL, COURT ACTION, AND ATTORNEY FEES
1. What is a Due Process Hearing?
A due process hearing is a formal proceeding in which evidence is presented to an independent hearing officer to resolve a dispute between you and the school district regarding your child’s disability identification, evaluation, eligibility, placement, services, or reimbursement of services you have obtained privately.
2. How To Request a Due Process Hearing?
A request for a due process hearing must be made within one year of the date you knew or should have known about the alleged action forming the basis of your dispute with the school district. This one-year limit does not apply if you were prevented from requesting the hearing because the school district specifically misrepresented that it had resolved the problem you complained about; or if the school district withheld pertinent information from you that it was required to provide you under Part B of the IDEA. Only you, your attorney representing your child, or the school district may request a due process hearing regarding a student with a disability. Upon your request, the school district must provide you with information on free or low-cost legal and other relevant services in your area, if you or the school district files a request for a due process hearing.
To request a due process hearing, you need to send a signed, written request with the identified information to the Louisiana Department of Education, Attention Legal Division, Post Office Box 94064, Baton Rouge, Louisiana 70804-9064, and to the school district. The written request must include your name, address, and telephone number; your child’s name and address (if different); the name of the school district and the school district the child attends; a statement of the reason for the hearing request, including a description of the problem and a statement of the facts relating to the problem; and a proposal for resolution to the problem,to the extent known to you.
You will not be able to have a due process hearing unless your written request for a hearing contains all of the information listed above.
3. Due Process Procedures
Once a request for a hearing is received, an independent hearing officer is appointed, and he or she is provided with a copy of your hearing request. Otherwise, your request remains confidential. The Louisiana Department of Education will send you and the school district a letter notifying you of the hearing officer’s appointment. In addition, the school district must abide by certain requirements within specific time periods after it receives your request for a due process hearing. The school district must also inform you of the availability of mediation and of any free or low-cost legal and other relevant services in the area.
Within 10 days of receiving your request for a due process hearing, the school district must do two things:
1. Send you written notice regarding the subject matter of your request for a due process hearing including:
a. An explanation of why the school district proposed or refused to take the action that is the subject of the due process hearing;
b. A description of the options the IEP Team considered and the reasons they were rejected;
c. A description of each evaluation procedure, assessment, record, or report the school district used as the basis for its decision; and
d. A description of the factors the school district believes are relevant to its proposal or refusal.
2. Send you a written response that specifically addresses the issues you raise in your request for a due process hearing.
NOTE: The school district is not required to send you this written notice after it receives your request for a due process hearing IF the school district previously sent you prior written notice on the same matter.
If the school district believes your letter requesting a due process hearing does not contain all of the required information listed above, it may send a letter to you and the hearing officer indicating that your request does not comply with the requirements. If the school district is going to send this letter, it must do so within 15 days of receiving your request for a due process hearing. The hearing officer then has 5 days to determine if your request is sufficient and will immediately inform both you and the district in writing of the decision. If the hearing officer agrees with the school district, you must resubmit the request for a due process hearing that meets all of the requirements. If the school district does not challenge the contents of your request for a due process hearing, it is considered to meet all of the requirements.
Within 15 days of receiving your request for a due process hearing, the school district must provide you with the opportunity for a resolution meeting to see if the matter can be resolved. The next section covers more information on the resolution meeting.
The Louisiana Department of Education maintains a record of special education court decisions, due process hearing decisions, and complaint decisions issued. Hearing decisions are posted below.
HEARING DECISIONS
Hearing #78-H-14
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Hearing #78-H-28
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Hearing #78-H-30
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Hearing #89-H-9
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Hearing #89-H-20
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Resolution Meeting Process
Prior to the opportunity for a due process hearing, the school district must convene a meeting called a "resolution meeting.” The meeting must include a representative from the school district with decision-making authority and relevant members of the IEP Team who have information about the facts alleged in the hearing request. Unless you bring your attorney to this meeting, the school district may not have an attorney at the meeting. In this meeting you will discuss the facts that formed the basis of your request and give the school district an opportunity to resolve the issues raised in your request. You can agree with the school district to use an alternative means to hold the resolution meeting (e.g., via video conference or conference telephone call).
1. If the school district has not resolved the due process complaint to your satisfaction within 30 calendar days of receipt of the request for a due process hearing, the due process hearing may occur.
2. The 45-calendar-day timeline for issuing a final decision begins at the expiration of the 30-calendar-day resolution period, except as described below under Adjustments. It is voluntary. You do not have to attend a resolution meeting if you and the school district agree in writing to waive it, or if you both agree to use the mediation process.
3. If you and the school district have not agreed in writing to waive the resolution meeting, your failure to attend the resolution meeting will delay timelines for the resolution process and the due process hearing until you agree to attend and can result in the dismissal of your request for hearing.
4. If you and the school district come to an agreement during this meeting, you will both sign a legally binding written agreement that will be enforceable in a court of appropriate jurisdiction. After it is signed, both you and the school district have three business days to change your minds, and either of you may void the agreement during that time.
5. If you and the school district agree in writing to waive the resolution meeting or if you cannot resolve the issues in mediation or a resolution meeting within 30 days of the school district’s receiving your request for a hearing, the due process hearing may occur.
6. If after making reasonable efforts and documenting such efforts, the school district is not able to obtain your participation in the resolution meeting, the school district may, at the end of the 30-calendar-day resolution period, request that a hearing officer dismiss your request for due process hearing. Documentation of such efforts must include a record of the school district’s attempts to arrange a mutually agreed-upon time and place.
7. If the school district fails to hold the resolution meeting within 15 calendar days of receiving notice of your request for due process hearing or fails to participate in the meeting, you may ask the hearing officer to order the 45-calendar-day due process hearing timeline.
8. If you and the school district agree in writing to waive the resolution meeting, then the 45-calendar-day timeline for the due process hearing starts the next day.
9. After the start of mediation or the resolution meeting and before the end of the 30-calendar-day resolution period, if you and the school district agree in writing that no agreement is possible, then the 45-calendar-day timeline for the due process hearing starts the next day.
10. If you and the school district agree to use the mediation process, at the end of the 30-calendar-day resolution period, both parties can agree in writing to continue the mediation until an agreement is reached. However, if either you or the school district withdraws from the mediation process, then the 45-calendar-day timeline for the due process hearing starts the next day.
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Amending Your Complaint
Once your request for a due process hearing has been determined to meet all of the requirements, you cannot change or add issues to the request unless one of the following occurs:
1. The school district agrees in writing that you can add or change issues and you have the opportunity to conduct a resolution meeting on the new or changed issues, OR
2. The hearing officer gives you permission to make changes (but this cannot occur within the last five days prior to the due process hearing).
If you are permitted to make changes or add issues to your request for a hearing, it may be treated as the first request for a due process hearing, and all of the timelines and events described above could begin again.
Before the hearing occurs, the independent hearing officer will contact you and the school district to make arrangements for a pre-hearing conference. One of the things you will decide at the pre-hearing conference is when the hearing will occur. The hearing will be held at a time and place reasonably convenient to you and the school district. The independent hearing officer will send you written notice about the time and the place of the hearing, as well as other procedural matters.
An independent hearing officer conducts the due process hearing. The Department of Education maintains a list of individuals who serve as independent hearing officers, along with a list of each individual’s qualifications. Individuals who serve as independent hearing officers cannot be employees of the State Department of Education or the school district that is involved in the student’s care or education, and they cannot have any professional or personal interest that would conflict with his or her objectivity in conducting the hearing. In addition, the hearing officer must possess knowledge of the Federal statute and regulations governing special education services, as well as "legal interpretations” made by Federal and State courts; possess the knowledge and ability to conduct hearings in accordance with standard legal practice, and be able to render and write decisions in accordance with standard legal practice. An individual who otherwise qualifies to conduct a hearing is not an employee of the school district or agency solely because he or she is paid by the school district or agency to serve as the independent hearing officer.
You will not be able to raise issues at the hearing that you did not include in your hearing request, unless the school district agrees otherwise.
You and the school district have the right to be accompanied and advised by legal counsel and by individuals with knowledge and training with respect to special education or the problems of students with disabilities; present evidence, confront, cross-examine, and compel the attendance of any witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed at least 5 business days prior to the hearing; separate the witnesses so that they do not hear other witnesses’ testimony; and be provided with an interpreter, if appropriate.
As a parent, you also have the right to decide whether your child (who is the subject of the hearing) will attend the hearing; have the hearing opened or closed to the public; and obtain a written or an electronic verbatim transcript of the proceedings, as well as a written or electronic copy of the independent hearing officer’s written decision, including findings of fact, conclusions, and orders without cost to you.
Before the hearing, you are entitled to a copy of your child’s educational record, including all tests and reports upon which the school’s proposed action is based. In addition, at least 5 business days before the date of the hearing, you and the school district must disclose to each other the evaluations each intends to use in the hearing. Specifically, copies of all evaluations and recommendations based on those evaluations must be
exchanged by that deadline. If either you or the school district fails to make these disclosures on time, the hearing officer may bar the evidence from the hearing. If an evaluation is underway and has not been completed, it is necessary to inform each other and the independent hearing officer.
The decision of the hearing officer is made on substantive grounds based on a determination whether the school provided your child with a free appropriate public education (FAPE). If your request for a hearing includes or is based on alleged procedural violations, the hearing officer may find that your child did not receive a FAPE only if he or she finds that the procedural violations occurred and they:
1. Impeded your child’s right to a FAPE;
2. Significantly impeded your opportunity to participate in the decision-making process regarding the provision of FAPE; or
3. Deprived your child of educational benefits. As part of his or her decision and order, the hearing officer may order the school district to comply with the procedural requirements.
The independent hearing officer must conduct the hearing and mail you and the school district a written decision within 45 calendar days from either:
a. The expiration of the 30-calendar-day period for resolution meeting; or
b. The expiration on the adjusted time period as described above to the 30-calendar-day resolution period. However, it may be longer than 45 days if the independent hearing officer grants a request for an extension of time from you or the school district. The independent hearing officer’s decision is final, and the orders must be implemented UNLESS you or the school district files a civil action in State or Federal court of competent jurisdiction, within 90 days of receipt of the notification of the findings and decision of the hearing officer.
The school district (or in some cases, the Legal Division) is responsible for payment of the hearing officer’s fees and the court reporter’s charges. You are responsible for your costs of participating in the due process hearing (e.g., witness fees, your attorney’s fees, costs of copying documents, etc.). Under certain circumstances, the school district may be required to reimburse you for your attorney’s fees.
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Finality of Decision, Appeal, and Impartial Review
If you disagree with the independent hearing officer’s written decision, you have the right to bring civil action in State or Federal court. You may be entitled to file a lawsuit under other State or Federal laws. However, if you are seeking a remedy that is also available under the IDEA or Article 7, you must first go through a due process hearing and administrative appeal.
Except when your child has violated a school district rule or has done something that could have hurt himself or someone else during any due process or court proceedings, your child stays in the current educational placement, unless you and the school district agree to another placement. If the hearing involves an application for initial admission to the school district, your child, with your consent, must be placed in public school until the proceedings are finished.
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Attorney's Fees
The court may award reasonable attorney’s fees if an attorney represents you during a due process hearing (including an appeal and subsequent civil action), if you ultimately prevail. You may also be eligible for an award of attorney fees if you are the prevailing party and were substantially justified in rejecting the school district’s settlement offer. The school district may negotiate with you or your attorney regarding the amount of reimbursement and, if necessary, about who prevailed.
If agreement is not reached through these negotiations, you may file an action in State or Federal court for resolution of the disagreement. However, the school district or the Department of Education may seek attorney’s fees against your attorney if your attorney requests a hearing or files a subsequent cause of action that is frivolous, unreasonable or without foundation or if your attorney continued to litigate after the litigation was obviously frivolous, unreasonable or without foundation. The school district or the Department of Education may also seek attorney’s fees from you or your attorney if the hearing request was presented for any improper purpose, such as to harass, to unnecessarily delay, or to needlessly increase cost of litigation.
Mediation is not available to resolve a disagreement on attorney’s fees. An action for attorney fees must be filed in a State or Federal court within 30 calendar days after a final decision that is not appealed. Any fees awarded must be based on rates prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished. No bonus or multiplier may be used in calculating the fees awarded under the IDEA and Article 7.
The court may not award attorneys’ fees for services performed after the school district made a timely written settlement offer to you, and the relief you finally obtained is not more favorable to you than the school district’s settlement offer (unless you were justified in rejecting that settlement offer) and the offer is made within the time prescribed by Rule 68 of the Federal Rules of Civil Procedures or, in the case of an administrative proceeding, at any time more than 10 days before the proceeding begins and the offer is not accepted within 10 days; any meeting of the case conference committee, unless the meeting was convened as a result of an administrative proceeding or judicial action; a mediation session that was conducted prior to the time the due process hearing request was filed, or a resolution session.
The court may reduce an award for attorneys’ fees if:
1. You or your attorney unreasonably protracted the final resolution of the controversy;
2. The fees unreasonably exceed the hourly rate prevailing in the community for similar services by attorneys of comparable skills, reputation, and experience, without a bonus or multiplier used in calculating the fee;
3. The time spent and legal services furnished were excessive, considering the nature of the action or proceeding; or,
4. Your attorney or you did not provide the school district with appropriate information in the due process hearing request.
The court may not reduce reimbursement for attorney fees if the court finds that the school district (or in some cases, the Louisiana Department of Education) unreasonably protracted the final resolution of the action or proceeding or there was a violation of USC §1415. The school district may use its Federal Special Education funds to pay for the costs of a due process hearing, but it cannot use those funds to pay your attorney’s fees or its attorney’s fees.
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