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.
Updated January 3, 2024, 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" (see end of article).
In 2008, Virginia Department of Education (VDOE) issued "2008 Parents' Guide to Special Education Dispute Resolution."
Although a lot's changed in the past 15 years, the guide "designed to assist parents in understanding Virginia's dispute resolution systems of mediation, complaints, and due process hearings" has remained the same.
The following is helpful information that I hope VDOE considers should it revise the guide. It comes from advice that long-time Fairfax County Public Schools (FCPS) lawyer John Cafferky provided to FCPS staff. In its 2008 guide, VDOE acknowledged John on a list of individuals who "contributed to the development of this document and/or who served as a reviewer." Hence, it seems fitting that the following advice 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."
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"
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 advance knowledge, down to the second, of when a parent will be notified of their HO's name.
To my knowledge, the guide doesn't address when the school division's attorney and the parent, and/or parent's attorney, are given notice that the name of a hearing officer has been obtained.
Although it is the school division's responsibility to obtain the name of the hearing officer, I assumed that the rest of the parties involved in the hearing would be made aware of the hearing officer simultaneously.
Certainly, it is important for parents to be organized and prepared to move forward once the hearing officer's name is provided, but it would help knowing in advance, so parents, too, could start filing one second after the hearing officer's name is provided.
Perhaps this is something VDOE will consider for a future revision of the guide.
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."
John Cafferky's Advice:
In a September 3, 2020, email to FCPS staff, John 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 guidebook doesn't state that resolution sessions can be used, too, 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.
It's an interesting reminder to staff that might be something VDOE could consider sharing with parents, too.
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).