Helpful Information from FCPS Lawyers, Which You Won't Find in VDOE's "2008 Parents' Guide to Special Education Dispute Resolution"
Nov. 2, 2023: First published.
January 3, 2024: Updated, to include the question and answer to D-18 in the U.S. Department of Education's Office of Special Education Programming's " July 23, 2013, Memo and Q&A on Dispute Resolution.
November 11, 2024: Updated, to include The Virginia Family's Guide to Special Education, which is VDOE’s most recent update to its “2008 Parents’ Guide to Special Education Dispute Resolution."
In 2008, Virginia Department of Education (VDOE) issued "2008 Parents' Guide to Special Education Dispute Resolution", which included an acknowledgement to long-time Fairfax County Public Schools (FCPS) lawyer John Cafferky on a list of individuals who "contributed to the development of this document and/or who served as a reviewer." Although VDOE released an update in 2010 under the same name, and then released a new guide (with the new title The Virginia Family's Guide to Special Education) in late October 2023, neither mentioned input from Cafferky, nor did they include the input from Cafferky that is shared below. Hence, it seems fitting that the following advice from Cafferky be considered for a future edition.
Hearing Officer and Notice of Hearing Officer
Page vii of the guide defines a hearing officer in the following manner:
"An unbiased individual assigned to protect the rights of all involved parties in a hearing and who makes a decision to resolve disputes under IDEA."
The 2023 Guide does not include a definition of a hearing officer.
Page 36 of the guide states the school division's role in obtaining the name of the hearing officer:
"After a due process hearing request is filed, the school division has five major things it has to do quickly:
"1. inform the parent(s) of their right to mediation
"2. inform the parent(s) of the availability of any free or low-cost legal and other relevant services in the area
"3. provide the parent(s) with a procedural safeguards notice if one had not been provided prior to the request for a hearing
"4. obtain the name of a hearing officer within 5 business days of receipt of the request for a hearing
"5. schedule a resolution session within 15 calendar days of receiving the request for a hearing"
This section doesn’t appear in the 2023 Guide, nor does the 2023 Guide mention the school division’s role in obtaining the hearing officer.
John Cafferky's Advice:
August 27, 2020, John Cafferky emailed the following to FCPS staff:
"In any event, let us know as soon as you have a HO. I guess the good news is that we won't get Alvey.
"Wes, please have Candace set up a "2020 DPH" file under the [REDACTED] number in ND. Calendar the applicable dates. We do not want to go past them. We also need aggressively to subpoena both mom, and Lindamood-Bell. Have these prepared, but don't send them to the HO until one second after mom is notified of the HO name."
Why VDOE Might Consider John Cafferky's Advice and Use it in Future Revisions of the Guide:
I was surprised to learn FCPS' legal team has advanced knowledge, down to the second, of when a parent will be notified of their HO's name. Although it is the school division's responsibility to obtain the name of the hearing officer, I assumed VDOE would make all parties involved in the hearing aware of the hearing officer assigned simultaneously.
Perhaps VDOE will consider addressing timing of HO notice in the future, so parents and/or their representatives can be ready to “aggressively” subpoena the school division within one second after being “notified of the HO name”, too.
Resolution Session
Page 40 of the guide states the following about the resolution session:
"After a due process hearing request is filed, the school division and parent have 30 days to resolve the dispute. This is called the “resolution period.” Following receipt of the due process hearing request, the school division has 15 days to schedule a resolution session. This is a: meeting, with the parents, and relevant member(s) of the IEP team who have specific knowledge of the facts included in the due process notice, to provide the school division the opportunity to resolve the disagreement."
Page 50 of the 2023 Guide states the following about the resolution session:
“During the first 30 days after the notice is filed, there is an opportunity for the parties to resolve the dispute through continued discussion. This time period is called the resolution period and the hearing will not be conducted during the resolution period. During this period, the school division is required to convene a meeting called the “resolution session” or “resolution meeting” within 15 days of the parent filing a request for due process.”
John Cafferky's Advice:
In a September 3, 2020, email to FCPS staff, Cafferky stated the following:
"Remember that even if it does not lead to a resolution, a resolution meeting is a good opportunity to make whatever proposal you want the hearing officer to consider, and press the other side for information. . . . Someone should take good notes. We can then do a summary letter that's admissible in the case."
Why VDOE Might Consider John Cafferky's Advice and Use it in Future Revisions of the Guide:
The Guides don't state that resolution sessions can be used to "press the other side for information."
As a parent myself, I'd not considered the opportunity to attend a resolution session as synonymous with the opportunity to press the other side for information.
Cafferky’s reminder to staff might be something VDOE could consider sharing with parents, too. Advising parents that they can use resolution sessions to “press the other side for information” would help ensure everyone is on the same page.
In addition to Cafferky's advice, VDOE might consider including the answer to Question D-18 in the U.S. Department of Education's Office of Special Education Programming's " July 23, 2013, Memo and Q&A on Dispute Resolution:
"Question D-18:
"Do the Part B regulations allow information discussed at a resolution meeting to be introduced at a due process hearing or civil proceeding?
"Answer: In general, yes. Unlike mediation, the IDEA and its implementing regulations contain no requirement for discussions in resolution meetings to be kept confidential and not be introduced in a subsequent due process hearing or civil proceeding. There is nothing in the IDEA or its implementing regulations that would prevent the parties from voluntarily agreeing that the resolution meeting discussions will remain confidential, including prohibiting the introduction of those discussions at any subsequent due process hearing or civil proceeding. Absent an enforceable agreement by the parties requiring that these discussions remain confidential, either party may introduce information discussed during the resolution meeting at a due process hearing or civil proceeding when presenting evidence and confronting or cross examining witnesses consistent with 34 CFR §300.512(a)(2). As noted in Question D-16, neither an SEA nor an LEA may require the parties to enter into such an agreement as a precondition to participation in the resolution meeting. 71 FR 46704 (August 14, 2006)."