Tuesday, April 23, 2013

Special Education Due Process Hearings Part 1: The Complaint

"Mediation didn’t work . . . the school district and its attorney are known for their stubborn opposition to parent special education requests, and there’s still a serious problem . . ."

In my experience, the vast majority of special education disputes are resolved through mediation. However, under some circumstances, parents and the attorneys who represent them decide it is necessary to go a step further and file a due process complaint with the state department of education, in order to have the case decided by an administrative law judge or hearing officer.

Federal regulations that implement the Individuals with Disabilities Education Act (IDEA) require the states to have a dispute resolution system and procedures in place, including provisions for impartial due process hearings. 34 CFR § 300.511. Common subjects of due process complaints include: eligibility for special education, a child’s educational placement, and issues involved in the provision of a free appropriate public education (FAPE) to a child.

A due process action begins when the parent (or school district) files a written complaint with the state department of education in which the child’s school is located. A complaint filed on behalf of the parents of a child with a disability must contain specific information, including a statement that the school district has violated a requirement of the IDEA or its implementing regulations, and provide the facts upon which the statement is based.

It is very important that the filed complaint contain all the issues in dispute because the party requesting the due process hearing will not be allowed to raise any issues at the due process hearing that were not raised in the due process hearing complaint. If after filing the complaint the parents believe they need to change or add to it, they may do this only if the school district (and any other education agency named in the complaint) agrees to this in writing, or the administrative law judge (or hearing officer) grants permission to amend the complaint.

It is also very important that the complaint be timely filed. The violation or violations alleged in the complaint may not have occurred more than two years before the date the parent or public agency knew or should have known about the acts/omissions that form the basis of the complaint.

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