Jennifer Kerns
SPE-350 Special Education Litigation and Law
Discovering the Relationship Between the Law and Your School (Benchmark Assessment
August 5, 2014
Nancy Hooper

Discovering the Relationship Between the Law and Your School (Benchmark Assessment)

For this Benchmark I had to research the law and how it is applied to special education issues that were covered in this class.. I looked at my state departments of educations website to view the laws of my state of Oklahoma and Texas and Arkansas to see how they cover special education issues. I had also had to interview a lawyer who is well-versed in school law. I interviewed Ms. Andrea Kunkel, she was a wealth of information. She is well-versed in Special Education law, she was an attorney at Rosenstein, Fist and Ringold, where she represented Oklahoma Public Schools. She handled many Due Process Cases, she advised school staff on their legal responsibilities under the Section 504, Title II of the ADA and IDEA. She also was the legal advisor of the Oklahoma Directors of Special Services and is now the staff attorney of CCOSA (Cooperative Council of Oklahoma School, where she is currently training school administrators on special education law and issues and is the liaison to ODSS group. The first topic we discussed was how has the legal system evolved, as it applies to special education, over the past 20 years, and how has that affected the legal framework for special education today? Ms. Kunkel said that in the 2004 Reauthorization of the IDEA, Congress Kerns Page 2 Law/Benchmark

added a requirement that, when a parent files a due process hearing complaint, the district and parent must promptly participate in a resolution session, unless they agree in writing to waive the resolution session. The purpose of the resolution session is to provide a forum at which the parent explains the complaint and what s/he is seeking through the process so that the district has an opportunity to resolve the complaint. Parties who resolve some or all of the complaint issues through a resolution session must spell out the terms of their agreement in writing, and that writing is enforceable in court. Ms. Kunkel injected that the resolution session alone is of questionable value in resolving cases. Those same cases would likely be resolved in an IEP team meeting held after the complaint was filed. However, in Oklahoma, the entity that runs our dispute resolution and hearing processes – the Special Education Resolution Center at OSU – makes available without charge, with the parties’ agreement, trained resolution session facilitators, who assist the parties in attempting to resolve the complaint issues. Resolution sessions that include facilitators are effective in resolving due process hearing complaints in Oklahoma. She pointed out that although the IDEA does not require parents and districts to participate in mediation, it encourages alternative dispute resolution processes. SERC offers mediation services without charge to resolve disputes between parents and districts that agree to participate. Mediation is available whether or not the dispute has resulted in a due process hearing complaint. Kerns Page 3 Law/Benchmark

Ms. Kunkel said that most recently, SERC has started to offer facilitation services at IEP meetings. Again, this service is free to parents and schools that agree to participate. SERC cannot make facilitation broadly available, due to limited resources, but it is likely to be available in situations in which parents and schools cannot make it through IEP meetings due to mental health issues or other major obstacles. She went on to point out that the availability of alternative dispute resolution options has improved the legal framework for special education in Oklahoma. Although Oklahoma has never been a state with large numbers of due process hearing complaints, the timing of SERC’s taking on the state’s due process hearing and alternative dispute resolution systems coincides with the filing of fewer due process hearing complaints. At a time when OSEP is emphasizing avoiding disputes and resolving disputes at the lowest possible level, Oklahoma is already a leader in those areas. Greater access to alternative dispute resolution processes seems to indicate that even fewer cases will result in administrative hearings, appeals and requests for judicial review. That indicates greater collaboration between parents and schools and improved services for students. How does the legal framework differ for special needs students and regular students in private and public schools was the next question that I asked her. She said that the IDEA applies to local education agencies (LEAs) like public schools, but not to private schools. Students with disabilities may be placed by their parents unilaterally in private schools or IEP teams in LEAs/public schools may place students with disabilities in private schools to receive FAPE. Kerns Page 4 Law/Benchmark

For unilaterally placed students, the private school may or may not provide the child with special education or related services and may or may not write an IEP or similar document. That is up to the private school. The parent has no access to due process procedures against a private school to challenge educational services provided or not provided to a private school student. She went on to say that for private schools that accept placements of students on IEPs to receive FAPE, then the placing LEA/public school has the legal obligation to provide the student with FAPE, to ensure that procedural safeguards are followed and that an appropriate IEP is developed and implemented. The private school does not become subject to the IDEA by accepting the student. The parent’s due process rights are against the LEA/public school, not the private school. Public schools have child find responsibilities as to students attending private schools, even unilaterally placed students. At most, the private school has a moral obligation, not a legal one, to refer parents to LEAs/public schools for IDEA evaluations when private school personnel suspect a disability. Parents who believe that the LEA/public school has failed in its child find obligation or obligation to evaluate or reevaluate a student have access to IDEA due process procedures. I posed the question, “Who monitors the implementation and evaluation of IEPs in private and public schools?” Ms. Kunkel stated that private schools that voluntarily develop IEPs for their students with disabilities who are unilaterally placed by their parents monitor their own IEPs. There is no state or federal oversight. IEP development and implementation by LEAs/public schools is monitored by the Oklahoma State Department of Education, which Kerns Page 5 Law/Benchmark

reports the results to the U.S. Department of Education/OSEP. LEAs/public schools face various consequences for IDEA violations. The last question that I asked her was “In the legal expert’s opinion, are there any elements of special education law that need refinement?” Ms. Kunkle said that, “ As to the legal system, I would prefer mandatory mediation when a due process hearing complaint is filed.” I researched how mediation works in my schools district website. The website stated that a trained mediator works with both of the parties involved. The Special Education Resolution Center (SERC) is the one who appoints a mediator when needed, these mediators are neutral. The mediator is neutral facilitator to help the family, students and the school staff to reach an agreement. The mediator is in control of the session they parties involved makes all of the decisions regarding the case. The mediator permits both parties to voice their points and tries to help both parties to come to a mutual understanding and find the best solution to the problem that best suits the problem and best services that student. Parents and the school system also have a role in the mediation, their role is to be active during the session and help to develop an agreement along with the mediator. Both parties can bring an attorney, but they are responsible for all fees. Mediation is free and not mandatory for any party to participate in. Mediation can be asked for at any time and if an agreement is made both parties get a copy of the agreement. If the agreement is not followed the case can go to court. (http://ok.gov/sde/faqs/special-education-mediation ) Kerns Page 6 Law/Benchmark

I researched laws and policies on my district’s website, which is http://ok.gov/sde/sites/ok.gov.sde/files/OSDE%20SES%20Policies.pdf . My state has policies that ensure that the funds that the state gets from IDEA (section 608 (a) ) There is a policy by the Oklahoma State Department of Education (OSDE) establishes that secondary transition services be started at the start of the students ninth grade year or when they turn 16. There is a policy that makes sure that classroom sides are not big. Initial eligibility determination must be completed within 45 school days of receipt. In Oklahoma Due Process is managed by The Special Education Resolution Center (SERC) SERC has expanded with programs to help assist families and school districts to resolve disputes at the earliest possible time. This service is done for free to families and the district. The mediators are well trained. Mediation in Oklahoma is totally voluntary. If a parents wants to have mediation, they have to fill out a form, sign and return it to the SERC and the SERC will inform the other party involved in the dispute. After both parties agree to attend the mediation, a mediator will be assigned, there is a mediation manual on the states website. . In Oklahoma a Due Process hearing proceeds mediation when the disputes cannot be worked out during mediation. There are special rules for the conduction of the hearing. There is a hearing officer that proceeds over the hearing. Both parties have thirty days to try to settle once again on a resolution. A hearing will go ahead at this point. These options for parents and districts are funded by the Oklahoma State Department of Education. As a paraprofessional I have luckily never had to go through a Due Process Hearing, but I have worked with a few parents that I was Kerns Page 6 Law/Benchmark

wondering if we were going to have to. I have worked with some wonderful families who truly worked with the school in making sure their child go the best education possible. In conclusion, through this course I have learned a lot about Special Education and law. The law is made to help people but I find that sometimes that is not case, through this class I have learned more about law and how it might help my special needs students. It is important as a teacher to be up on law. I might be the only one who can help my students and families. I want to be source of help and safety for my students and their families. As a special education teacher I will try to stay up on laws and stay educated myself.

Resource Page

http://ok.gov/sde/faqs/special-education-mediation (N.D) retrieved on August 5, 2014 http://ok.gov/sde/sites/ok.gov.sde/files/OSDE%20SES%20Policies.pdf (N.D.) retrieved on August 5, 2014
Personal Interview with Ms. Andrea Kunkel on August 3, 2014