OCR Early Complaint Resolution...Any experience?

[daisy madness]

Has anyone participated in Early Complaint Resolution with OCR?  Or do you know of anyone who has?  If so, is it worth it to try?  I spoke to an attorney at OCR today and it seems like a scenario where my issue could be resolved much more quickly than if they did a full investigation, although it wouldn't result in an official finding against the district.  I don't see any negatives to trying except that without an official finding against the district, the level of change that needs to happen within the district will most likely not occur even if my singular issue is resolved.  But, as Dr. Phil says "Do I want to be right?  Or do I want to be happy?"  Thoughts?

[twinturbo]

My advice is worry about your child's 504 necessary and effective accommodations, don't try to extend it to district-wide policy if that's what you mean by a finding against the district beyond your individual resolution. Apologies if I read that wrong, but all 504 does is tailor to the individual student's needs. Are those needs being met in the form of necessary and effective individual accommodations to eliminate discrimination? If so call it a win.

Dunno if it helps make the decision tree easier here but OCR is going to play by the rules and 504 is not a tool for affirmative action, not to drive school policy. In the end that's actually for the best as school policy isn't law and at worst it could create a template for the school to make a one-size-fits-all accommodation that could hamper the 504 individual accommodations for the next person.

[CMdeux]

    Being a trailblazer is good.

But not burning bridges AS you cross them?  Better.

Do what YOU need.

[daisy madness]

Yes, that's what I'm leaning toward.  Although a big, fat, official finding against the district would be fabulous.  If we end up having another issue down the road, I'm concerned we'll be back in the same place because the foundational issue would not have been solved even if the surface issue had.  Example, they make the accommodation now, and in 2 years decide it's no longer necessary, back to square one we go. 

[twinturbo]

A policy won't change that, neither will a finding. You've got a record of this with OCR. Keep that. You'll be defending accommodations as time goes on. Find solid purchase now on the condition it is actually an accommodation that is effective as it is necessary to eliminate discrimination in order for student to receive FAPE. Stay on that course.

Leave an option that allows them to save face *as long as you get what's needed*. A cornered enemy is a desperate, more dangerous enemy.

[CMdeux]

... and a far more bitter one down the road.

So even if you win, you lose (eventually) if you press so hard that they can't save face or pretend that they meant to do the right thing all along.

KWIM?

[Janelle205]

I would try the resolution first.

I haven't had any battles with the school, since I'm the one with allergy here.  But from other legal issues we've had, it does help to be able to say "We tried to do the reasonable thing here, and the other party chose to dig in their heels first."

[daisy madness]

Got it.  Thanks!  OCR will be calling the district next week to ask if they are willing to mediate.  If so, mediation must take place within 3 weeks.  I'll be sure to update. 

[twinturbo]

daisy, you know I'm not a lawyer and therefore we never consider my posts legal advice, right?

Now that I've repeated that I might have something interesting for your upcoming mediation with OCR. I'm betting you're already hitting the right notes otherwise you wouldn't have OCR flexing at least a little muscle here.

I'm going to link to something at the GPO (Government Printing Office) re: 504 and FAPE with specific attention to related aids and services. The GPO is considered the gold standard of regulations so anything on even the Dept of Ed wouldn't supersede it. GPO doesn't make the regulations they're just responsible for holding the most accurate version of them.

http://www.gpo.gov/fdsys/pkg/CFR-2010-title34-vol1/xml/CFR-2010-title34-vol1-sec104-33.xml

Code of Federal Regulations
Title 34 - Education
Volume: 1
Date: 2010-07-01
Original Date: 2010-07-01
Title: Section 104.33 - Free appropriate public education.

Context: Title 34 - Education. Subtitle B - Regulations of the Offices of the Department of Education. CHAPTER I - OFFICE FOR CIVIL RIGHTS, DEPARTMENT OF EDUCATION. PART 104 - NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE.

Subpart D - Preschool, Elementary, and Secondary Education.

§ 104.33Free appropriate public education.

(a) General. A recipient that operates a public elementary or secondary education program or activity shall provide a free appropriate public education to each qualified handicapped person who is in the recipient's jurisdiction, regardless of the nature or severity of the person's handicap.

(b) Appropriate education.
(1) For the purpose of this subpart, the provision of an appropriate education is the provision of regular or special education and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met and (ii) are based upon adherence to procedures that satisfy the requirements of §§ 104.34, 104.35, and 104.36.
(2) Implementation of an Individualized Education Program developed in accordance with the Education of the Handicapped Act is one means of meeting the standard established in paragraph (b)(1)(i) of this section.
(3) A recipient may place a handicapped person or refer such a person for aid, benefits, or services other than those that it operates or provides as its means of carrying out the requirements of this subpart. If so, the recipient remains responsible for ensuring that the requirements of this subpart are met with respect to any handicapped person so placed or referred.

Transportation by itself can be troublesome because it can be at times exempt from ADA. In this case transportation is a related service to FAPE and in order to benefit from that service as adequately as it is for non-disabled peers his 504 accommodation to have a responsible adult ready to administer epinephrine is a necessary and effective accommodation.

Notice I'm staying away from "reasonable", stick to necessary, effective, appropriate. One thing I learned from a webinar recently is if it's a surprise that the SD's attorney is there see if you can postpone until you can have your own attorney.

This is my next attempt at digging further into transportation as it relates to FAPE because this seems to be a battle ground for accommodations especially with regard to epinephrine administration. It's a lot of raw thought and drawing on different references so hopefully I can come back to refine this over some time.

[twinturbo]

One more thing before I go on holiday mode and forget.

Mediation cuts both ways. You know you're going into this as a compromise--that part we can check off as done. Now, the other side MUST come with the same good faith intention which must include a representative capable of making decisions.

Do not fall prey to false pretenses where the representative from the school side needs to "ask permission for that accommodation" or "need to consult [superiors]".

Beware the car sales strategy where you work with the sales agent that needs to "talk to the manager" before giving you anything solid.

I would be bold yet civil in two possible scenarios:

(1) SD lawyer shows up unannounced. Postpone, come back with your own.
(2) School representative is not empowered (or claims not to be) to make decisions, needs to 'consult others'. Postpone, say you came in good faith to mediate when the other side comes through with a decision maker mediation can continue.

Decision talks, BS walks.

Matter of fact, I'd try to clarify that through the OCR contact if the SD will be having its lawyer there, and confirm they are sending a representative capable of making decisions to the mediation.

[CMdeux]

One other caveat which is truly critical going into mediation--


find out WHO appoints the mediator and whether or not agreements reached there are binding.

[daisy madness]

Transportation by itself can be troublesome because it can be at times exempt from ADA. In this case transportation is a related service to FAPE and in order to benefit from that service as adequately as it is for non-disabled peers his 504 accommodation to have a responsible adult ready to administer epinephrine is a necessary and effective accommodation.

I'll be writing this down in my notes and bringing it to the meeting.  This is exactly the point I'm getting at.  But I don't think I find the words as well as you do. 

[twinturbo]

The way I play the game is sticking to the script I only repeat what's in the regs. Speaking of which use the search function here for "in loco parentis" a lot of the groundwork for that doctrine is laid out by some of the members here wrt to 504, epi, etc.

This next part I'm going to categorize as risky because it's more aggressive but if I found the process stalled by foot dragging I'd press hard and fast on when does custody begin for the SD and how is it NOT the moment child enters bus all the way through when child exits bus at the end of the day.

The bus is a related service, he is in custody (bad term I know habit from dealing with arrestees in custody), this is all FAPE. He needs a related aid in the form of a bus aide to benefit equally to peers from the related service=bus. It is an effective, necessary accommodation appropriate for this child.

[daisy madness]

One other caveat which is truly critical going into mediation--


find out WHO appoints the mediator and whether or not agreements reached there are binding.

OCR appoints the mediator.  I believe the mediator is an employee of OCR.  The OCR attorney who called me is also an OCR mediator, although she will not mediate this since it is her own case.  If an agreement is reached, and the district does not abide by it, I can report it to OCR (although I'm not sure exactly what they would do).  Also, she said that sometimes, a district will agree to mediation with the sole goal of scoping out the complainant's case with no intention of agreeing to anything.  She said that the mediators are trained to look for that and shut it down immediately.

She said that most of the time the mediator will not physically come to the school but that I can go to OCR's office if I want to and physically sit with the mediator.  I think that is what I will do.  I do not wish to sit with the school district, unless I bring an attorney.  I'm unsure on the finances of that at the moment.  She said that school districts generally do have their attorney present.   

And the car sales analogy is perfect.  They did that for months. 

I just received an email from OCR.  She will be calling the district tomorrow to ask if they are willing to mediate.  If so, she will put in the request with OCR for mediation.  OCR supervisors then review my complaint.  If they determine that this may be a "class" issue, they reject the mediation and go straight to investigation.  If they believe this to be an issue particular to my child, they will proceed with the mediation.  Mediation must take place within 3 weeks. 

I know I'm preaching to the choir here, but this is different than the Voluntary Resolution Agreement that a district can enter into with OCR after they have formally begun an investigation.   

[daisy madness]

The way I play the game is sticking to the script I only repeat what's in the regs. Speaking of which use the search function here for "in loco parentis" a lot of the groundwork for that doctrine is laid out by some of the members here wrt to 504, epi, etc.

Also, the OCR attorney was very careful to repeatedly say that it is not within OCR's scope to force the district to make a specific accommodation.  They will not require them to put an aide on his bus.  I asked "Is it within OCR's scope to determine if it is discriminatory for the district to state that they refuse to administer epi in accordance with his emergency action plan should he experience anaphylaxis on the bus?  Can the district pick and choose when they apply his emergency action plan and when they do not?"  She gave me a wishy washy non-answer.