Special Education/mediation agreement with school disctrict
I little background. We filed a due process hearing with my sons school for multiple violations and denials of FAPE and settled with them in mediation just before school started this year. His last signed iep was in 2011 and going into mediation he had a draft work in progress unsigned iep dated 5/2012. One section of mediation agreement states "parties agree that the students educational placemnet and services for 2012-2013 school year unless changed by iep process, oah judge, or signed agreement between parties and then list the basics, school name, speech, ot, aide suport hours, behavior consult hours, Min in special day class and minutes in mainstreem. Another section in mediation provides us with an FAA behavioral assesment, and another section simply says "parent and district will continue to meet to develop a new iep for student". Based on the written terms of the agreement I interpreted this to mean these services were to be added to his draft iep or at a minimun attach to his last signed iep and to be in place for him from start of this school year which would include his current draft behavior support plan attached to iep until we get assesment and then we would update and develop a new iep at that time. Upon calling an iep to discuss some issues we found out the district interpreted this agreement to replace his entire IEP until after all assesment are in (which will take almost 4 months before all done) before writing a new iep with new goals, modifications, adaptations ect...Most importantly they also said that the mediation agreement states his services for this year and no BSP in included under that section therfore he currently has no behavioral support plan in place until iep team meets and reviews FAA assesment. This is a child wih autism, history of behavioral issues and restraints have been used last year on him. is this true that a mediation agreement becomes the child new IEP until district decides to create a new one? This also seems very illegal that for 4 months the child can go without an bsp, updated iep goals and everything else that goes along with his IEP document. What are the parents options when mediation agreements are written so vague that the district can twist the wording and interpret it to suit there own wants and needs? There are other various issues on the agreement that we interpret to mean one thing they interpret to mean something else such as we agreed to what we thought and confirmed with mediator present was a 1:1 aide for 6 hours per day but it was written as "Aide support to be provided by a mutally agreed upon NPA who signs an invidual service agreement for that child". They interpret this to be classroom aide support or SCA and refuse to identify her as a 1:1 aide that way they can use her to teach small group intruction part of day in the class. This was clearly not the intention of the aggreement as we would have never agreed to an sca becouse he is in an sdc class and there were already 2 classroom aide in his class. What are our options? Is there ever a time when a judge will overturn the entire mediation agreement and let us refile since there is a clear un-meeting of the minds and differant interpertaions in the wording and meaning of the agreement? or are we stuck with letting the district interpret it how they want? To make matters worse we has an attorney with us for mediation who failed to catch or claify the wording on any of these issue described. Any advice would be appreciated.
First of all, this sounds like a real mess. First, as I understand it, negotiated mediation agreements signed by both parties are considered binding. However, if one party is not living up to their end of it, or it is so poorly defined that multiple interpretations are possible, then I don't believe it would continue as binding. I would consult legal council to see what your options might be.
Now, if the IEP has been in place without a newly created document, or IEP Change documented to continue the older IEP (not an assumption), then the district continues to be in violation of FAPE for not having a current IEP. The law is clear that an IEP must be reviewed annually and the legal interpretation is that the IEP cannot be in place for more than 365 days. Not having signatures of agreement is not a reason for allowing an IEP to lapse more than 365 days, in fact, no excuse allows that to happen. IEP compliance is a 100% indicator and The Office of Special Projects reacts when schools report this information, which they do. That's the first thing and IEP with IEP Team concensus is the first thing to clear up. Concensus does not mean that all official voters sign in agreement, not even the parent is required to be in agreement, as they are only one member of the 5 positions required. If the team cannot agree, but the majority, interpreted from the term concensus, which might mean larger majority, agree. Districts make the error of thinking that they have to have the IEP signed by the parent or they cannot implement...now if they put an IEP in place that is not appropriate then you have the right to follow due process to correct it.
If I were you I would file an Official Complaint for denial of FAPE, i.e. the IEP is not appropriate or legally in place, parts of his plan do not include remediation for diagnosed problems (behavior analysis, behavior plan). The IEP must address the whole child, not just a part of the disability, or conduct only what they have available.
The rules regarding mediation are unique to each state, so it may be different...in the states where I have worked the mediation agreement was open to new mediation or due process hearing after a year...but you will need to check with your state department complaint resolution department to be sure.
So, first step, ask for an IEP meeting. Second step, if meeting doesn't resolve the problems, or put in place a new or revised IEP, call the Dispute Resolution Office of your State Department of Education, Exceptional Student Services Division and find out exactly what your options are. If you can file a complaint do that before Due Process.
Since this is so complex, if you need clarification send me a follow-up.