
R 209SLR
Database
This is the content currently stored in the post and postmeta tables.
object(Timber\Post)#3711 (44) {
["ImageClass"]=>
string(12) "Timber\Image"
["PostClass"]=>
string(11) "Timber\Post"
["TermClass"]=>
string(11) "Timber\Term"
["object_type"]=>
string(4) "post"
["custom"]=>
array(5) {
["_wp_attached_file"]=>
string(12) "R_209SLR.pdf"
["wpmf_size"]=>
string(6) "528193"
["wpmf_filetype"]=>
string(3) "pdf"
["wpmf_order"]=>
string(1) "0"
["searchwp_content"]=>
string(88620) "Resolving Special Education Disputes in California Stephen Lipscomb with research support from Karina Jaquet Supported with funding from The Special Hope Foundation and The William and Flora Hewlett Foundation February 2009 The Public Policy Institute of California is dedicated to informing and improving public policy in California through independent, objective, nonpartisan research on major economic, social, and political issues. The institute?s goal is to raise public awareness and to give elected representatives and other decisionmakers a more informed basis for developing policies and programs. The institute?s research focuses on the underlying forces shaping California's future, cutting across a wide range of public policy concerns, including economic development, education, environment and resources, governance, population, public finance, and social and health policy. PPIC is a private, nonprofit organization. It does not take or support positions on any ballot measures or on any local, state, or federal legislation, nor does it endorse, support, or oppose any political parties or candidates for public office. PPIC was established in 1994 with an endowment from William R. Hewlett. Mark Baldassare is President and Chief Executive Officer of PPIC. Thomas C. Sutton is Chair of the Board of Directors. Copyright ? 2009 by Public Policy Institute of California All rights reserved San Francisco, CA Short sections of text, not to exceed three paragraphs, may be quoted without written permission provided that full attribution is given to the source and the above copyright notice is included. Research publications reflect the views of the authors and do not necessarily reflect the views of the staff, officers, or Board of Directors of the Public Policy Institute of California. ii Contents Summary iv Acknowledgments vi Introduction 1 1. HOW OFTEN IS DISPUTE RESOLUTION REQUESTED? 2 The Process for Resolving Special Education Disputes in California 2 Mediation and Due Process Hearings in California 3 Dispute Resolution Requests Across States 7 Due Process Request Trends since 1991?92 9 2. HOW AND WHY DO DISPUTE RESOLUTION REQUESTS VARY ACROSS CALIFORNIA? 12 Rates of Dispute Resolution Requests across California School Districts 12 Factors that Predict Higher Rates of Dispute Resolution by Filing Party 12 Patterns of Parent-Initiated Dispute Resolution Requests 13 Patterns of District-Initiated Dispute Resolution Requests 15 Differences in Filing Rates by School District Type 16 Overall Rates of Dispute Resolution in California School Districts 17 Conclusion 18 Appendix A: Supplementary Material and Results 19 Parental and District Rights Under IDEA 19 Data Sources 20 Estimation Methods 21 Appendix Tables 23 Glossary: Disability Categories and Definitions 29 List of Acronyms 31 References 32 iii iv Summary Children with disabilities in the United States are entitled to appropriate special education services to meet their individual needs. The responsibility for meeting these needs falls on local school districts. In 2006?07, California school districts spent $9.3 billion to provide special education to children with disabilities, who represent about 10 percent of the state?s total enrollment (Lipscomb, 2009). Although the financial obligation is on school districts, identifying disabilities and designing individualized educational programs for disabled students necessitates close cooperation between parents and schools. Most of the time, parents and schools agree on an educational program that best serves the interests of the child. However, collaborative processes inevitably result in disagreements in some cases. California?s procedures for resolving special education disputes provide a means for parents and school districts to address their differences. Federal law gives both parties the right to due process and mediation in special education matters. In 2007?08, requests for dispute resolution in California totaled 3.9 per 1,000 special education students, one of the highest rates in the country. Resolving disputes is critical to effectively serving disabled children. Yet pursuing dispute resolution can be costly and time consuming for both parties, raising the possibility that due process is more accessible to some Californians than to others. This report examines special education dispute resolution in California and its use by parents and school districts. The first chapter describes how mediation and due process hearings work. It also provides basic statistics about hearing requests in the state, recent trends, and alternative approaches that local districts are developing. Finally, the chapter explores factors that may relate to growth in hearing requests at the national level. The second chapter examines patterns of dispute resolution requests in California school districts, focusing on predictors of higher request rates by parents and school districts. A common misconception about special education disputes is that most involve administrative law judges who issue rulings after very legalistic hearings. The reality is that parties settle the majority of disputes and only 4 percent are ultimately adjudicated. Since 2005? 06, the number of hearing requests per special education student has declined both in California and nationally, possibly in response to several contemporaneous changes to special education law. This recent trend marks a reversal of a pattern of steady growth in hearing requests since at least 1991?92. The findings here suggest that part of the nationwide growth during this period relates to the adoption of a special education funding model by California and a number of other states. Requests for dispute resolution in California are concentrated in less than a third of school districts. Holding constant other observable characteristics, requests initiated by both parents and school districts are more common in larger, densely populated districts. District size and enrollment density are also significant predictors of higher autism rates, the disability that is most frequently the source of dispute. The findings also suggest that cost and budgetary factors bear on the decision by parents and school districts to pursue dispute resolution. In this regard, patterns of filing by each side differ because parents and school districts face different sets of relevant economic constraints. Parents initiate the vast majority of requests. Parent-initiated request rates are higher in school districts with lower enrollment rates in free or reduced price lunch, a variable that relates to the community poverty level. This suggests that lower-income parents might not have the resources necessary to initiate requests. Community income and poverty are weaker predictors of higher request rates initiated by districts. Instead, district-initiated request rates are higher in districts that receive less special education revenue per capita and in districts that operate in regions where educators can expect to earn higher wages. While the patterns of dispute resolution may arise through somewhat different processes for each party, the explanation for each pattern points toward the influence of relevant budgetary factors. California?s pattern of settling most cases before hearings suggests that the dispute resolution process operates efficiently. However, its high rate of dispute requests is evidence that more could be done to resolve disputes locally. School districts in many states, including California, are developing alternative dispute resolution (ADR) strategies that emphasize non- adversarial environments. ADR aims to increase efficiency, trust, and cost-effectiveness on both sides. For example, the technique of including a third party during the development of educational plans for disabled students emphasizes dispute prevention. Although the research on alternative techniques is currently limited, the findings from this and other existing work support the idea of expanding their availability across the state and analyzing their effectiveness. At the same time, increasing public awareness will be essential to addressing equity concerns and fostering effective utilization. v Acknowledgments I would like to thank several people who spoke with me about the dispute resolution process in California, including Paul Goldfinger, Sarge Kennedy, Bill Koski, Sherianne Laba, Jack Lucas, Steve Moyer, and John Namkung. In particular, I deeply appreciate the insightful comments that Kim Connor, Jaqui Guzman, and Tom Parrish provided on an earlier draft. This work would not be possible without their careful assistance. I would also like to thank members of PPIC?s Education Advisory Committee for their suggestions during presentations of the work in progress. At PPIC, Richard Greene, Hans Johnson, Eric Larsen, and Lynette Ubois provided thoughtful comments and suggestions that improved the study and Karina Jaquet provided outstanding research support. Research publications reflect the views of the author and do not necessarily reflect the views of the staff, officers, or Board of Directors of the Public Policy Institute of California. All errors are my own. vi 1 Introduction The Individuals with Disabilities Education Act (IDEA) of 2004 includes an extensive list of ?procedural safeguards? to help ensure that children with disabilities in the United States obtain a free, appropriate public education. Designing educational programs for disabled students is fundamentally a collaborative process between parents and schools (Lipscomb, 2009). In such an environment, it is only natural that disagreements occasionally arise. IDEA?s most important safeguards give families and school districts the right to resolve disputes through two avenues: mediation and due process. In 2007?08, requests for dispute resolution in California totaled 3.9 per 1,000 special education students. Almost all cases filed in California request both mediation and due process. The most recent national numbers show that parents and school districts across the United States filed 2.1 due-process requests and 1.2 mediation requests per 1,000 special education students in 2006?07. California?s request rates are among the highest in the country. Dispute resolution can involve substantial costs for both families and school districts. The best cost estimates come from Chambers, Harr, and Dhanani (2003), who conclude that U.S. school districts spent $8,160 to $12,200 per case on mediation and due process hearings in 1999? 2000. These estimates suggest high financial burdens on families as well. For most families, the burden is probably more substantial in relation to income than it is for school districts. Districts can also budget in advance for projected dispute resolution costs, and spread them over a larger number of students. For instance, Chambers, Harr, and Dhanani show that dispute resolution costs to districts in 1999?2000 converted to about $24 per special education student. In contrast, just affording the dispute resolution process, let alone navigating it, may be a barrier to some families. This report examines dispute resolution processes in California, to inform future special education policy and research. It describes how mediation and due process hearings work and presents current statistics about their implementation. It also discusses dispute resolution trends and the development of alternative strategies, and presents evidence suggesting an association between California?s type of special education funding system and higher request rates. Finally, this report examines request rates at the district level, with a particular focus on understanding which factors make parents and school districts each more likely to initiate the process. The findings suggest approaches California might consider to improve the accessibility of dispute resolution. 2 1. How Often Is Dispute Resolution Requested? Chapter highlights: x Most special education disputes settle before a due process hearing. Only 4 percent of disputes ended with a judicial decision in 2007?08. x In 2007?08, California parents and school districts filed 3.9 requests for dispute resolution per 1,000 special education students, among the highest rates in the U.S. x California?s system of special education finance is associated with growth in hearing requests per capita nationwide between 1991 and 2000. x The frequency of hearing requests grew steadily in California until 2005?06 and then declined, possibly due to several contemporaneous policy developments. The Process for Resolving Special Education Disputes in California Parents, legal guardians, and school districts can seek dispute resolution when disagreements about a child?s special needs and services arise. 1 In California, the Office of Administrative Hearings (OAH) facilitates the state?s dispute resolution process. This process is very legalistic when it involves formal hearings, but most disputes are resolved before that stage. Parents and school districts first make concerted efforts to reach an agreement themselves through cooperative, non-adversarial approaches. Parties that request dispute resolution through OAH choose between two main options: due process with mediation, and mediation only. 2 Due process with mediation is the predominant choice across the state. When OAH receives such a request, it schedules a due process hearing date for about 55 days later. The interval gives parents and school districts an opportunity first to resolve the dispute through a mandatory resolution session and then through mediation. Unless the parties agree otherwise, students remain in their current educational placements until the dispute is resolved. 3 School district representatives must convene a resolution session with parents to allow each side to discuss factual matters and to attempt a settlement. School districts may bring a lawyer only if the parents also bring one. If the dispute is resolved, the parties alert OAH and sign a legally binding settlement agreement. If an impasse remains, OAH schedules a mediation conference. 4 Mediation is a voluntary, non-adversarial process in which parties use a trained OAH mediator to help them find common ground. In practice in California, parties almost never waive mediation. OAH cannot appoint attorneys to represent parties, but federal law allows 1 This report refers to dispute resolution requests as either district-filed or parent-filed. 2 See www.oah.dgs.ca.gov for additional information. 3 IDEA requires that school districts provide the parents of disabled students a copy of their rights under special education law. 4 Parents and school districts can agree to waive the resolution session. 3 attorneys and advocates to attend mediations requested in conjunction with due process. 5 The parties keep all discussions and possible agreements confidential. If mediation does not resolve the dispute, OAH convenes a due process hearing before one of its Administrative Law Judges (ALJs). 6 Due process hearings resemble a civil trial. The ALJ presides over the hearing, rules on motions, considers evidence, and issues a binding legal decision. Parties involved in due process hearings have the right to legal counsel at their own expense and may present evidence. They may compel witnesses to testify and cross-examine witnesses called by the other side. OAH mediators are available for parents representing themselves, to answer questions about the process and to identify issues, so long as they do not give legal advice. Prevailing parties can attempt to recoup their legal fees through separate civil action. As well, the losing side can appeal in state or federal court. The hearings themselves typically last several days. Although they resolve the impasse, the outcome may not be mutually satisfactory. Chambers, Harr, and Dhanani (2003) find that almost all the school districts in their nationally representative sample view mediation as more cost-effective than due process. Cost- effectiveness is one reason why California offers ?mediation only? as an alternative to the due process framework. Mediation-only conferences operate like other mediation conferences with one key difference, that lawyers or advocates are not permitted. This approach can be an attractive way to use the services of an independent mediator, keep costs low, and maintain a non-adversarial setting. Of course, the downside of mediation only is that it is not always successful. However, federal law prohibits mediation from infringing on an individual?s right to due process in a follow-up request. Mediation and Due Process Hearings in California Figure 1.1 describes the 2,626 requests for dispute resolution that OAH received during 2007?08. According to federal disability count data, this is about 3.9 requests per 1,000 special education students ages 3?21. Over 90 percent of all cases filed request due process hearings. 7 Mediation-only requests, in contrast, account for only 5 percent of cases. The remainder are expedited hearings, such as to determine whether a student?s misbehavior was caused by a disability, or dual hearings that involve both expedited and non-expedited issues. Parents initiated 86 percent of the cases. 8 5 California requires that OAH maintain a list of special education advocates and attorneys offering free or reduced cost services. 6 Interpreters for mediation conferences and due process hearings are available if requested. 7 As described above, due process requests include a mediation conference prior to the hearing unless one of the parties opts out. The due process request rate is about 3.7 per 1,000 special education students. 8 ?Parent-initiated? requests include those filed by parents, legal guardians, and the student. Figure 1.1 Requests for Dispute Resolution by Filing Party, 2007?08 79% 5% 2% 11% 0% 3% Parent rDue Process Hearing [2,072] Parent rMediation Only [139] Parent rExpedited &