Be Aware Of Procedures and Forms Developed By Your State Department of Education -- They May Be Drafted To Help School Districts And Intentionally Hurt Parents
by REED MARTIN, J.D.

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Under the most recent IDEA Amendments, the Congress provides that if a parent requests a Hearing, procedures must be established to suggest that the parents and school district might resolve the dispute through Mediation first. And, if the State were in compliance with the Americans with Disabilities Act of 1990, they would inform the parent and school of other kinds of Dispute Resolution that must be made available. (That is, of course, if the State was in compliance with the ADA).

One would assume, of course, that the Mediation process that would be offered by your state is not openly biased for school districts and against the complaining parent. Would we be surprised if the Dispute Resolution Request form sent to a parent from a state education office was intentionally slanted toward the local school district and intentionally misinformed the parent about their rights?

In the State of Maine they have answered that question in favor of the schools.

In Maine their pre-printed State Education Agency Dispute Resolution form sternly warns the parents that if they have to go past the Mediation into a due process Hearing, that if they do not provide certain information in writing it may result in the reduction in the award of any attorneys fees they might win through the Hearing or any court proceedings afterward. That can certainly scare a parent out of even starting the process!

What parent could risk running up a large attorney fee obligation when they do not know if they would be able to recover any of it from the losing school district? We assume that is the intention of the Maine Department of Education in their form.

The source Maine DOE relies on is the IDEA, at 20 U.S.C. 1415(b)(7) and 1415(i)(3)(F). However their warning about attorneys fees clearly misstates the law in a way calculated to create what we lawyers call "a chilling effect" on the parents.

The Maine Form intentionally stops informing the parents at 20 U.S.C. 1415 (i)(3)(F) and omits the next sentence of the Federal Law which is (i)(3)(G). These provisions were added to the statute as part of the development of the Handicapped Children's Protection Act of 1986. The HCPA overturned the 1984 U.S. Supreme Court decision in Smith v. Robinson which had denied the right of parents to recover attorneys fees under the IDEA.

Reed Martin is an attorney with over 35 years experience in special education law and recognized as one of the nation's leading experts. He can be reached through email at connie@reedmartin.com or www.reedmartin.com

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