Monday, May 6, 2013

Special Education Due Process Hearings, Part 2: What Happens After a Due Process Complaint is Filed?

This is the second in a series of articles describing special education due process hearings and procedures.

The regulations for Part B of the federal Individuals with Disabilities Education Act (IDEA) and state special education regulations which govern special education due process procedures and hearings set forth a series of deadlines that apply to the parties (the parent, school district, area education agency and other public education agency named in the complaint). The "clock" starts when the parent or the parent’s attorney files the due process complaint with the state department of education and serves it on the school district and other named parties. The process described below reflects the time lines and procedures used in Iowa.

Determining the "Sufficiency" of the Complaint

Within five days after the complaint is filed, the administrative law judge must decide whether or not the complaint is "sufficient" and must immediately notify the parties in writing of that decision. The sufficiency of the complaint is determined on the basis of whether the complaint contains the required information and the dispute described is one for which the law may provide a remedy. A complaint which alleges that a child is not receiving a free appropriate public education (FAPE) because she needs more or different special education services is likely to be deemed sufficient, whereas a complaint which alleges that a public school district is not providing a FAPE because it hasn’t adopted the Peters Projection map of the world.

After the ALJ has deemed a complaint to be sufficient, the parties may gather information and evidence from each other through the use of "discovery procedures." These procedures have their own requirements and deadlines, and described in detail in each state’s Rules of Civil Procedure. 

School District's Answer to the Complaint

Within 10 calendar days after receiving the Complaint, the school district, area education agency, and any other public education agency named in the Complaint must file with the state department of education and provide a copy to the parents, a written Answer specifically addressing the issues stated in the Complaint.

Prior Written Notice to the Parent

Within 10 calendar days of receiving the complaint, if the school district has not sent Prior Written Notice to the parents concerning the subject of the complaint, they must send the parents a response providing:

  • An explanation of why the school proposed or refused to take the action addressed in the due process complaint;

  • A description of other options that the school district considered and the reasons why those options were rejected;

  • A description of each evaluation procedure, assessment, record, or report the school district used as the basis for the proposed or refused action; and

  • A description of the other factors that are relevant to the school district’s proposed or refused action.

The 30 Day "Resolution Period"

A 30-calendar day "Resolution Period" begins when the school district, area education agency, and the Iowa Department of Education all receive the due process hearing request.

Resolution Meeting

Within 15 calendar days of receiving the Complaint, the school district must convene a Resolution Meeting with the parent and members of the IEP Team unless the school district, and parent agree in writing to waive the meeting. If all the parties do not waive the meeting, then the parent must attend it. If the parent does not attend, the ALJ may dismiss the parent’s Complaint.
If the district fails to hold the resolution meeting within 15 calendar days of receiving notice of your due process hearing request, OR fails to participate in the resolution meeting, the parent may ask the ALJ to order that the 45-calendar day due process hearing time line begin.

Within 45 calendar days after the 30-day resolution period:

If the dispute is not resolved during the 30-day resolution period, the state department of education must ensure that a due process hearing has been completed in no more than 45 days, unless a party asks the ALJ for, and the ALJ chooses to grant an extension.

Deadline for Disclosures

At least five business days prior to the hearing, all of the parties are required to have disclosed to each other all evaluations completed by that date and the recommendations based on those evaluations that they intend to use at the hearing. An ALJ may prevent any party that fails to comply with this requirement from introducing the relevant evaluation or recommendation at the hearing without the consent of the other parties.

No comments:

Post a Comment