Monday, May 13, 2013

Special Education Due Process Hearings Part 4: Appealing Due Process Decisions

This is the fourth article in a series about special education due process hearings.

After a due process hearing, the administrative law judge (ALJ) or hearing officer weighs the merits of each party’s argument, evidence, and witnesses, in light of what the IDEA, state law, and their implementing regulations require, and keeping in mind the legal interpretations of the courts in regard to their provisions. As set forth in the IDEA regulation concerning hearing decisions, 34 C.F.R. §300.513 states:

(a) Decision of hearing officer on the provision of FAPE. (1) Subject to paragraph (a)(2) of this section, a hearing officer’s determination of whether a child received FAPE must be based on substantive grounds.

(2) In matters alleging a procedural violation, a hearing officer may find that a child did not receive a FAPE only if the procedural inadequacies—

(i) Impeded the child’s right to a FAPE;

(ii) Significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to the parent’s child; or

(iii) Caused a deprivation of educational benefit.

(3) Nothing in paragraph (a) of this section shall be construed to preclude a hearing officer from ordering an LEA to comply with procedural requirements under §§300.500 through 300.536.

It’s important to understand the meanings of two words used above: "substantive" and "procedural." Substantive law is the law governing rights and duties (e.g., timely provision of special education services set out in the IEP), while procedural law governs the technical procedures (e.g., giving of meeting notice) involved in implementing and enforcing laws.

An party to the due process proceeding who disagrees with the decision of the ALJ has the right to bring a civil action in state or federal district court with regard to the outcome of that decision.

However, if the decision is not appealed within the time limit allowed by law, the ALJ’s decision is final. Under §300.516(b), in a one-tier due process system (the vast majority of the states), the party must bring the civil action within 90 days of the date of the decision (or within the state’s time frame if the state’s law has established a different one).

In a civil action, when an appeal has been filed, the court receives the records of the administrative proceedings and, at the request of either party, may hear oral arguments. The district court bases its decision on the preponderance of the evidence and grants the relief that it determines to be appropriate.

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