The IDEA requires States to provide Mediation opportunities to parents of children with special education needs to resolve disputes with their school districts. In addition to Mediation, States can elect to offer other types of dispute resolution procedures as alternatives to litigating a Due Process Hearing, and Connecticut has incorporated a procedure called “Advisory Opinions” as an option to Parents and school districts.
What is an Advisory Opinion?
An Advisory Opinion is basically a “speed round” Due Process Hearing, where the Parents and the school district present a very condensed version of their case to a State of Connecticut Special Education Hearing Officer, who listens to each side’s arguments, reviews limited exhibits, and “advises” the parties what their ruling would likely be if they were the Hearing Officer assigned to the case. The people who present evidence are not sworn in under oath, and there are no objections allowed during those presentations. The purpose is to allow both sides to get an opinion as to the merits of their positions, without assuming the costs and risks associated with a full Due Process Hearing. Hopefully, after learning what a Hearing Officer thinks of your case, the theory is that one or both sides will reconsider their position and come to a resolution.
Advisory Opinions are neither required, nor can they be forced on either side: it is a purely voluntary process which is designed to help parents and school districts resolve their disputes.
Connecticut did not create the Advisory Opinion Process; in fact, I believe they got the idea from Massachusetts. What is smart about how CT handled it, though, is that they gave those of us who wanted to avail ourselves of the process the opportunity to mutually agree upon the Hearing Officer who would be assigned to the case. For Special Education Attorneys in Connecticut who regularly appear before the Hearing Officers, whether for parents or school districts, it was useful to be able to select the Hearing Officer that both sides thought would be fair, so that the advice given by the Hearing Officer would be given more weight. It is my understanding that a very high proportion of the cases in Connecticut that go to Advisory Opinion settle without having to litigate.
What are the benefits of an Advisory Opinion?
The primary benefit is that it is fast. Once a date is set, you spend a couple of hours presenting your Mini-Hearing, and you will have an answer from the Hearing Officer usually about a half an hour later. In addition, hearing what an experienced special education Hearing Officer has to say about your case, and your opponent’s, is valuable. It is also useful to have a “snapshot” of what the school district is likely to say if the case proceeds to a full Hearing. If you’re going to have an “uh oh” moment when you hear your opponent’s case, better it happen in an Advisory Opinion than a lengthy, expensive Due Process Hearing! It also helps both sides get a very small taste of what it feels like to have to present their case to a neutral party.
What are the risks of an Advisory Opinion?
There are a few. First, you need to know that Advisory Opinions are NOT BINDING. Therefore, if you go into the Advisory Opinion, and even if the Hearing Officer says: “I agree 100% with everything the parent says and if I were the Hearing Officer assigned to this case I would order 10 years of compensatory education immediately”, your school district could say “yeah, well, we don’t and we still won’t provide more services.” So you have to feel like both parties are going into the process in good faith. Second, if the Advisory Opinion does not produce a resolution, you’ve found yourself weeks, or even months later without a resolution and still having to litigate. Also, as a matter of strategy, if you have alerted your school district to a weakness in their case about which they were unaware, you might have given them the opportunity to craft an intelligent response to this for the full Due Process Hearing. Finally, and I think is the most important, there are some cases that are simply too complex to present in such a shortened time period and with limited records, and therefore the advice both sides will get really is not reflective of how a Hearing Officer would rule if they had a fully-fleshed out record before them.
I recommend Advisory Opinions in cases where the Issues in dispute are fairly simple or discrete, or where I believe the school district or the parent is being unnecessarily stubborn about their position and needs a “reality check.”
You can find the form to request an Advisory Opinion on the State of Connecticut Department of Education’s website here: http://www.sde.ct.gov/sde/lib/sde/PDF/DEPS/Special/Due_Process_Forms.pdf. However, if you think your school district will be represented by an attorney in this process, I definitely recommend you call a Parents’ Attorney for a consultation.
We are fortunate to have an additional mechanism available to us in Connecticut to help foster settlements of special education disputes, but like all forums, the Advisory Opinion Process has its flaws. At best, you reach an understanding with your school district quickly and with little risk. At worst, you unnecessarily embolden your opponent.