The Missouri Department of Elementary and Secondary Education has established specific procedural safeguards, as indicated by Special Educational Services Statutes (Sections 162.950 through 162.963) and Chapter VI of the Missouri State Plan for Part B of the Individuals with Disabilities Education Act, that address the rights of children with disabilities, parents of children with disabilities, and school districts
Steps in Due Process
The first step in the due process system is the resolution conference. This remedy is available to the school district as well as the parent. A resolution conference is an informal conference conducted by the Superintendent of Schools (or designee). Parents may waive their right to this conference and request a local three-member hearing panel.
The resolution conference may be initiated under the following situations:
Any action proposed by the district to initiate or change the identification, evaluation, placement of a child or the provision of a free, appropriate public education
Any refusal by the district to initiate or change the identification, evaluation, placement of a child or the provision of a free and appropriate education
When a free and appropriate public education for a child with a disability is in question
School personnel should carefully review the parents' rationale for any refusal and consider additional strategies for resolving such a disagreement before proceeding to a resolution conference.
Prior to the resolution conference, the district must advise parents in writing, of the district's proposed action or refusal of action. The resolution conference, if requested, must be held not more than ten days after written request by the parents. The review may be delayed if the parents agree to a later date.
During the resolution conference, each party has the following rights:
To have counsel present
To examine all diagnoses, evaluations, and reevaluations
To call witnesses, cross-examine witnesses, and present any written or oral information which pertains to the action
Based on the Resolution Conference and evidence, the Superintendent or designee may:
Initiate or change the identification, evaluation, or placement of the child, or the provision of a free appropriate public education to the child
Refuse to initiate or change the identification, evaluation, or placement of the child, or the provision of a free appropriate public education to the child
Parents may appeal the decision of the Superintendent to the school district's Board of Education. If appealed, or if the parents waived their right to the resolution conference, the local Board of Education must empower a hearing panel of three persons who are not directly connected to the original decision and are not employees of the school district. The panel must be empowered within ten days of the appeal or request for a local-level hearing (due process). To select the panel, the parents select one hearing officer, the school district selects one hearing officer, and both the district and parents mutually agree to the final hearing officer who serves as chairperson for the proceedings. If a mutually agreed upon chairperson cannot be determined, a list of potential chairpersons is provided by the Department of Elementary and Secondary Education. Each party then strikes off a person until the chair is identified as the person remaining.
A licensed Missouri attorney will be appointed by the State Board of Education to advise the panel on legal matters before, during, and after the hearing. The attorney shall be in attendance during the hearing.
The empowered hearing panel has 15 days to give notice of the time and place of the hearing, to conduct the hearing, and to render a decision. The hearing is closed (not open to the public) unless the parents want to open it. In addition to the rights indicated for the administrative review, both parties have additional rights related to the due process hearing. They are to:
Compel the attendance of witnesses
Prohibit the introduction of any written evidence or records that have not been disclosed at least five days prior to the hearing
Have witnesses testify under oath with all testimony recorded Obtain a written record of the hearing
Obtain written findings of fact and decisions of the hearing panel
Based on the hearing, the panel by majority vote may:
Change or initiate evaluation or placement
Refuse to initiate evaluation or placement
Determine appropriate education of the child
Order any relief deemed appropriate and within the boundaries of the law
If a review of the hearing panel's decision is requested by either party, it may be appealed to a court of competent jurisdiction. If an appeal is to a state court, it must be filed within 30 days after the decision.
If the parents prevail in due process, they may recover reasonable attorney's fees comparable to fees awarded in similar proceedings. These fees are not recovered if the parents reject a settlement offered from the school district and do not obtain better relief in a subsequent hearing or court action.
At any point during the proceedings, the school district and parent, by mutual agreement, may submit the dispute to a mediator. All costs associated with mediation, except diagnostic services, legal counsel or other services of a personal nature are the responsibility of the school district.
Prevention of Formal Due Process Procedures
The procedures and actions required by both parties involved in a due process hearing are expensive and time consuming. Due process hearing procedures also have associated emotional considerations for both parties. It is in the interests of both parties to attempt to resolve issues of disagreement without initiating a formal due process hearing or submitting the dispute to a mediator. Ways to resolve disagreements include:
Encourage staff (administrators and teachers) to develop rapport with parents. It is much easier to solve a problem when clear, open communication is the rule, rather than only a tool to solve problems.
Attempt to reach compromise on issues. Identify and implement alternatives to problem situations. Alternatives might include diagnostic teaching or an interim placement to determine an appropriate diagnosis or program for a student with a disability.
Always be prepared for meetings with parents. A staff person who is not well-prepared for a meeting with a parent may appear insensitive to the child's and/or parents' needs. Also, if staff are well-prepared for a meeting, they will be less likely to feel anxious or intimidated at the meeting.
Listen to parents' concerns and take the time needed for problem resolution. Thoroughly consider parent suggestions for resolution of problem situations.
When meeting with parents for the purpose of problem resolution, make sure that the physical environment (e.g., seating arrangements, adequate space) is conducive to open discussion.
As indicated earlier, the school district may want to contract with a mediator to review the problem and provide suggestions for resolution. This mediator must be agreed to by the parents.
School district personnel may want to consult with attorneys who are knowledgeable regarding special education law and litigation issues relative to district policy and procedure.
The list of suggestions above is by no means exhaustive. School district administrators should add to the list in order to provide for the best interests of children and parents in their school district.
Conflict Resolution
Within a school district, there are many individuals who may be called upon to assist in resolving conflict situations related to special education. Such individuals may include building principals, special education teachers, regular classroom teachers, counselors, central office staff, and parents of children with disabilities. However, some situations dictate the need to use out-of-district resources such as attorneys, medical doctors, and psychologists. It is crucial that district guidelines be established so these professionals are consulted when appropriate or necessary. Indicated below are situations when it may be appropriate to consult with out-of-district professionals.
ATTORNEYS. It may be appropriate for the director of special education to consult an attorney when:
Staff or parents indicate that they are bringing an attorney to a scheduled meeting
There is a question regarding the interpretation of a recent special education court case (e.g., Rowley decision related to appropriate education) which may affect district special education policy or procedure
Considering a long-term suspension (suspensions in excess of 10 consecutive days, or in excess of 10 days cumulatively, where a pattern of suspensions is created) or injunctive relief for a student with disabilities
The district anticipates initiating or being a respondent in a due process hearing
The district is developing policy related to students with disabilities
A potential negligence issue has arisen
Considering the dismissal of a tenured teacher and/or administrator
There are other times, in addition to the situations previously indicated, when it may be appropriate to consult with the district's attorney.
MEDICAL DOCTORS. Within the medical profession, there are numerous specialists who play a role in the provision of appropriate educational services for students with disabilities. Pediatricians, ophthalmologists, neurologists, and psychiatrists are but a few of the types of doctors who may assist special educators. It may be appropriate to consult someone in the medical profession when:
A parent does not concur with the school district's observations of a child's developmental functioning. A pediatrician may be helpful in this situation.
There is a question regarding a physical and/or health impairment. A neurologist, pediatrician, or orthopedist may be needed for diagnostic and programming purposes.
There is a question regarding the emotional status of a student related to evaluation and programming. Mental health service providers may be helpful, especially with students who may be dangerous to themselves or others.
Mental health service providers may be beneficial in assisting school districts in evaluating and providing appropriate educational programs for students with disabilities. It may be appropriate to consult a mental health service provider when:
There are diagnostic questions related to a student's disability or potential disability
A student is in need of individual therapy in order to maintain the child's placement in local school district program
Parents are in need of training to provide for the unique needs of their children
Students are not making adequate progress in their current educational programs
A potential due process situation has arisen related to the identification or placement of student with a disability
There is a potential child abuse situation or a student crisis situation
Advocacy Services/Parent Support Group
Missouri Protection and Advocacy Services (P&A) was established in 1977 to protect and advocate for persons with disabilities. P&A is a private, not-for-profit corporation that provides advocacy, legal, legislative services, and training for persons with disabilities and their parents/guardians in Missouri.
MPACT (Missouri Parent Act) is a statewide, non-profit, independent parent center that serves parents of children with disabilities. It provides individual assistance, a resource library, and workshops for parents of children with disabilities.