Resolution Sessions Under the IDEA

Published on June 4, 2009 by Jennifer Laviano

Every few years, Congress reauthorizes the Individuals with Disabilities Education Act.  As part of that process, changes are made to the Statute, many of which are lobbied for by school districts or parents’ disability advocacy groups.  The 2004 Reauthorization of the IDEA, which led to the passage of the Individuals with Disabilities Improvement Act of 2004 (IDEIA, but still referred to as IDEA by most in the special education community) included a number of changes to the 1997 Reauthorization.  One of them was the creation of a process called a “Resolution Session.”

Is a Resolution Session a Mediation?

No.  The IDEA contemplates a number of forums for discussing, and hopefully resolving, disagreements between parents of children with special education needs and their school districts.  The first such meeting is, obviously, the IEP meeting.  If you can not resolve things there, then parents and schools can choose to avail themselves of the Mediation process.  As I’ve previously discussed, there are some important considerations to be made when deciding whether to participate in Mediation for your special education case.   In some States, there are other options available as well, such as an Advisory Opinion Hearing.  If Mediation and other attempts at settling the dispute are unsuccessful, then typically the next step is to file for a Due Process Hearing, which also has its risks and benefits.

Is a Resolution Session an IEP Team Meeting?

No.  A Resolution Session is to include the parents, a person from the school district who is in a position of authority and can make decisions on behalf of the district, and school district staff who might have information about the issues in dispute.  School districts are NOT permitted to have their attorneys with them at a Resolution Session UNLESS the parents have their legal counsel with them (as opposed to IEP meetings where they arguably can).

A Resolution Session is only “triggered” when a request for a Due Process Hearing has been made.

Once a parent or their representative has filed for a Due Process Hearing, the school district is required under IDEA 2004 to offer a Resolution Session within fifteen (15) days of receiving the request for Due Process.  Resolution Sessions can be waived, but that has to be done in writing and it must be a mutual waiver between the parents and the district.  Therefore, if you want to waive the Resolution Session and the other side does not agree, it can’t be waived.

I am finding some school districts using the Resolution Session process to force parents to agree to Mediation, as in “we will only waive the Resolution Session if you agree to Mediate your case with us.”

Some parents do not wish to engage in Mediation with their school districts, for any number of reasons, and up until 2004 there wasn’t much that school districts could do about it.  Now, a school can wait until the parent files for a Hearing, and then say “let’s Mediate,” and if you disagree because you don’t trust them, they can functionally force you into a negotiation through the Resolution Session process.

If you ask 10 attorneys who represent kids with special education needs throughout the country whether they “like” or “don’t like” the Resolution Session process, you are likely to get 10 different answers!

Any information which parents receive about their rights under the IDEA is going to be colored by any number of considerations on behalf of the attorney representing your child.  There are differences in style, experience, and philosophy even among the very small population of parents’ attorneys.  As long as you are being advised by an experienced attorney who really does understand and practice under the IDEA, there is no “right” or “wrong” answer to the question of whether Resolution Sessions are advised.   For me, I don’t happen to think that the Resolution Session offers much to the process other than allowing a school district to fix their paperwork before heading into a Hearing!

My general thought on Resolution Sessions is this:  if your school district were inclined to do the right thing, they probably would have in the first place.

Therefore, giving them the opportunity, without any assurance that the district will genuinely incorporate your concerns into the IEP, to perform “damage control” on their case after a parent has already gone to the trouble and expense of requesting a Due Process Hearing, is not terribly attractive to me.

Ultimately, if you feel your special education director and/or administration are receptive to your ideas and concerns, then by all means, give a Resolution Session a try.  If not, then I would simply ask you to ask yourself whether your time might be better spent preparing for a Due Process Hearing.

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