DISCUSSION/ACTION
12.0
MONTGOMERY COUNTY BOARD OF EDUCATION
Rockville, Maryland
April 23, 2013
MEMORANDUM
To:
Members of the Board of Education
From:
Patricia O’Neill, Chair, Board of Education Policy Committee
Subject:
Tentative Action, Policy BLC, Procedures for Review and Resolution of Special
Education Disputes
The Board of Education Policy Committee, in consultation with staff members, identified Policy
BLC, Procedures for Review and Resolution of Special Education Disputes, for updating. The
updated draft establishes and recognizes review and resolution options that permit cooperative
problem solving of disputes regarding the identification, evaluation, educational placement, or
provision of a free and appropriate public education for a student with a disability or suspected of
having a disability under the Individuals with Disabilities Education Act (IDEA).
The Policy Committee and staff members engaged in substantial discussion regarding the
process for the settlement of claims related to special education legal fees and costs. The Policy
Committee requested information about such settlements in previous years and information
regarding processes used by other large jurisdictions. Staff members provided background
information on current practice as follows: a) the Dispute Resolution Committee (DRC) meets
weekly to review all special education cases; b) when appropriate, the DRC reviews the
settlement of legal fees and costs to ascertain if it is a reasonable amount; and c) makes a
recommendation to proceed to negotiate the fees with opposing counsel and settle the matter.
During the last five years, there have been three cases that have resulted in a settlement of claims
related to special education legal fees and costs. A review of the settlement practices of
jurisdictions in the state of Maryland and elsewhere in the country indicated that Montgomery
County Public Schools practices are consistent with other jurisdictions. Most jurisdictions have
delegated the responsibility of settlement to the superintendent. If settlement cannot be reached,
the matter is referred to court for a judge to determine the legal fees award.
Subsequently, staff reviewed with the committee proposed modifications to the policy that
included a specific monetary settlement authority for the superintendent and a process by which
settlement of claims related to special education legal fees and costs would be evaluated by legal
Members of the Board of Education
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April 23, 2013
counsel and reported to the Board. Additional discussion focused on what, if any, dollar amount
should require advance Board approval. Staff and committee members discussed how requiring
Board approval would likely hinder the settlement process, as negotiating such settlements often
is a time-sensitive matter. Therefore, the Policy Committee agreed that such settlements could be
evaluated by counsel and reported to the Board. The Board receives such reports as appropriate
as part of the monthly report of legal fees.
Members of the Policy Committee discussed draft Policy BLC, Procedures for Review and
Resolution of Special Education Disputes, on April 18, 2012, June 11, 2012, and on
January 15, 2013. A draft of the policy is attached.
The following resolution is provided for your consideration:
WHEREAS, Policy BLC, Procedures for Review and Resolution of Special Education Disputes,
has been updated to establish and recognize review and resolution options that permit
cooperative problem solving of disputes regarding the identification, evaluation, educational
placement, or provision of a free and appropriate public education for a student with a disability
or suspected of having a disability under the Individuals with Disabilities Education Act; and
WHEREAS, The Montgomery County Board of Education Policy Committee has considered and
recommended revisions to Policy BLC, Procedures for Review and Resolution of Special
Education Disputes; now therefore be it
Resolved, That the Montgomery County Board of Education takes tentative action on Policy
BLC, Procedures for Review and Resolution of Special Education Disputes; and be it further
Resolved, That Policy BLC, Procedures for Review and Resolution of Special Education
Disputes, be sent out for public comment.
Present at the Board table for the discussion are Mr. Zvi Greismann, attorney, Legal Services;
and Mrs. Stephanie P. Williams, director, Department of Policy, Records and Reporting, Office
of Shared Accountability.
PO:hp
Attachment
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BLC
1
Related Entries:
BLB, BLB-EA,BLC-EA, JOA-RA
2
Responsible Office: Board of Education
3
Special Education and Student Services
4
Instruction and Program Development
5
Related Sources:
Annotated Code of Maryland, Education Article,
6
§4-401, et seq., and §8-413; Code of Maryland
7
Regulations
8
Individuals with Disabilities Education Act
9
(IDEA), 20 U.S.C. §1400, et seq.
(COMAR)
§13A.05.01,
et
seq.;
10
11
12
Procedures for Review and Resolution
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of Special Education Disputes
14
15
16
A.
PURPOSE
17
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To establish and recognize review and resolution options that
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permit cooperative problem solving of disputes regarding the
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identification,
21
students with disabilities or the provision of a free and
22
appropriate public education (FAPE) for a student with a
23
disability or suspected of having a disability under the
24
Individuals with Disabilities Education Act (IDEA)
evaluation,
or
educational
placement,
of
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26
B.
ISSUE
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28
Students with disabilities and their parent(s)/guardian(s)
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29
must be guaranteed procedural safeguards with respect to their
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right to a FAPE free appropriate public education and should
31
have available less formal options for resolution of disputes.
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33
34
C.
POSITION
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1.
Statement of Philosophy
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It is the intent of the Montgomery County Board of
39
Education (Board) to resolve all disputes related to
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special education in as efficient and cooperative a
41
manner as possible.
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(MCPS) has established an administrative review process
43
that may be used and encourages the use of mediation
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processes authorized by state and federal law.
Montgomery County Public Schools
45
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The parent/guardian/eligible student (a student 18 years
47
of age or older) may elect not to use an administrative
48
review and may request mediation and/or a due process
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hearing in accordance with state and federal law.
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2.
Applicable Laws, Rules, and Regulations
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Where applicable, these procedures should be read in
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conjunction with state and federal laws, rules, and
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regulations that include the following:
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a)
The Annotated Code of Maryland, Education Article,
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Section 8-4135
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b)
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Maryland State Board of Education bylawsCode of
Maryland Regulations (COMAR) §13A.05.01 et seq.:
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(1)
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BylawCOMAR §13A.05.01 deals specifically with
Programs for Students with Disabilities
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(2)
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BylawCOMAR
§13A.05.01.14 deals specifically
with Due Process Hearing Procedures
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c)
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The Individuals with Disabilities Education Act
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(IDEA) 20 U.S.C. §1400 et seq., and Rules and
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Regulations Implementing IDEA
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3.
Conflicts
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In
cases
of
conflicts
between
these
procedures
and
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applicable state or federal laws, rules, or regulations,
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the state or federal laws, rules, or regulations shall
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govern.
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4.
Administrative Review and Resolution
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The parent/guardian/eligible student may select, as an
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alternative to mediation/due process hearing procedures,
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an administrative review.
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The process for administrative review involves reviewing
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all
available
records
on
the
student
and
obtaining
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information required for clarification so that a decision
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that attempts to resolve the dispute in a way that is
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satisfactory to both parties can be offered.
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(1)
When Available
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An administrative review is available whenever a
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parent/guardian/eligible student is dissatisfied
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with a decision, or lack thereof, regarding the
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identification,
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placement, of a student or the provision of a FAPE
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for a student with a disability or suspected of
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having a disability under IDEA, free appropriate
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public education and has not filed a request for
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mediation and/or a due process hearing.
evaluation,
or
educational
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(2)
Procedure
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To initiate the administrative review, MCPS Form
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336-43A, Request for Administrative Application for
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Informal Review and Resolution, must be completed
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by the parent/guardian.
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with the Department of Special Education Services.
The form is then filed
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A
committee
of
no
less
than
two
(2)
MCPS
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professional staff members, at least one of whom is
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certificated in special education, who have had no
115
direct involvement in the decision, will obtain
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relevant
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submitted by the parent/guardian/eligible student
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with the form or gained from other sources.
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administrative review should be completed within
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twenty (20) calendar days of filing. However, at
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any time during the process, or at the completion
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of
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and/or a due process hearing.
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a
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administrative review will terminate.
the
due
records
process,
process
and
a
consider
party
hearing
may
any
information
request
The
mediation
If mediation and/or
is
requested,
the
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When a review is completed, a representative of the
128
Department of Special Education
Office of Special
129
Education and Student Services
will inform the
130
parties in writing of the suggested resolution.
If
131
all
be
132
committed to writing and signed.
parties
concur,
the
resolution
shall
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5.
Mediation/Due Process Hearing Procedures
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136
The Board of Education encourages the use of state
137
provided mediation as an alternative to resolution of
138
disputes prior to or current with a due process hearing.
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Mediation attempts to bring about a resolution of the
140
dispute by the parties through the intervention of a
141
neutral third party. Mediation is made available through
142
the
143
conducted by an impartial administrative law judge.
State
Office
of
Administrative
Hearings
and
is
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The Board of Education also recognizes the availability
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of due process hearings through the State Office of
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Administrative Hearings.
148
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A parent or MCPS may initiate mediation/ and/or a due
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process
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evaluation, educational placement, or provision of a FAPE
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for a student with a disability or suspected of having a
153
disability under IDEA free appropriate public education
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by making a written request to the State Office of
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Administrative Hearings and ensuring the opposing party
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receives a copy of the request. MCPS Department of
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Special Education. If an oral request is received, MCPS
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will provide the individual with a request form and
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assist
160
appropriate.
hearings
the
concerning
individual
in
the
completing
identification,
the
form,
as
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162
D.
DESIRED OUTCOME
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164
MCPSontgomery County Public Schools desires to seek early
165
resolution of disputes in as informal and cooperative manner
166
as possible.
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E.
IMPLEMENTATION STRATEGIES
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170
1.
The superintendent of schools will publicize the options
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for review and resolution of disputes regarding the
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identification, evaluation, or educational placement, of
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children or the provision of a FAPE for a student with a
174
disability or suspected of having a disability under IDEA
175
free
176
procedures for applying forrequesting mediation/ and/or a
177
due process hearings.
appropriate
public
education
as
well
as
the
178
2.
179
The superintendent of schools will develop regulations
180
and other procedures as necessary to implement this
181
policy.
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3.
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The superintendent of schools will establish a data
184
collection process to determine the effectiveness of the
185
implementation of these procedures.
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F.
REVIEW AND REPORTING
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1.
The superintendent of schools shall bring to the Board
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all matters related to this policy that involve issues of
191
great importance.
192
193
2.
The level of authority of the superintendent to settle
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claims related to special education without specific
195
approval of the Board of Education shall be set by
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resolution adopted by the Board of Education.
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of claims related to special education legal fees and
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costs that exceed the level adopted by the Board of
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Education
200
reported to the Board of Education.
shall
be
evaluated
by
legal
Settlement
counsel
and
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3.
This policy will be reviewed on an ongoing basis in
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accordance with the Board of Education policy review
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process.
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Policy History:
Adopted by Resolution No. 399-80, June 23, 1980;
208
amended by Resolution 429-80, July 8, 1980; amended by Resolution
209
No. 536-84, October 9, 1984; amended by Resolution No. 590-86,
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November 6, 1986; reformatted in accordance with Resolution No.
211
333-86, June 12, 1986 and Resolution No. 458-86, August 12, 1986,
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and accepted by Resolution No. 550-88, October 24, 1988; amended by
213
Resolution No. 737-95, November 14, 1995; amended by Resolution No.
214
472-96, July 9, 1996.
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