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.

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.

Special Education Mediation

The Individuals with Disabilities Education Act (IDEA) requires that state departments of education provide a process through which parents of children with disabilities have the opportunity to request a mediation conference to settle disagreements the assistance of trained neutral mediator, between the parent, school district, and area education agency. [20 U.S.C. 1415(e); 34 CFR 300.506] More specifically, the IDEA requires state departments to maintain a list of qualified mediators who are knowledgeable about special education law and trained in mediation techniques, compensate the mediators so that the process is free to both parents and school districts, and establish and implement procedures for facilitating mediation.

Unlike due process hearings, the law requires that mediation be voluntary on both sides. This means that if a school district opposes a parent’s request for mediation, a mediation will not be held. However, school districts and AEAs often prefer mediation to due process since there is little down-side to them other than their attorney fee expenses, which in some states, are covered by the school district’s and AEA’s insurer.

Other than the prospect of attorney fees, there is little down-side for parents. Before thinking about filing a request and going it alone at a mediation, parents who think they cannot afford an attorney’s services should first speak with an attorney who represents parents in special education matters, and inquire how the attorney charges in regard to mediation proceedings.

Mediation does not delay a parent’s right to go forward in filing a due process complaint, if that is what the parent chooses. Filing a request for and engaging in mediation also does not delay the expiration of the two year statute of limitations on filing due process. After the mediation has been filed, unless the parents, school district and area education agency agree otherwise, the child involved in the mediation remains in his or her present educational placement pending the outcome of the mediation.

It is important to note that what people say during mediation is confidential, and may not be used as evidence in a later due process hearing or civil court proceeding. If the parties come to a verbal agreement In the course of mediation, then that agreement must be put in writing and signed the parents and a representative of the school district. The written agreement is enforceable in court, which is important because neither the parent nor school district are required to go through a due process hearing in order to enforce its terms.

Parents have the right to file mediation request to resolve special education disputes with their child’s school district and the area education agency pertaining to matters including the following:

Eligibility for special education services
Evaluations
Educational placement
Implementation of the IEP
Need for more/different special education and/or related services
Compensatory services
Outcome of a manifestation determination review
Provision of free, appropriate public education.

Due Process in Special Education Hearings

When parents of children with disabilities ask why a due process is not simply called a trial, they are asking an important question that goes directly to their rights under the U.S. Constitution. The Fifth Amendment guarantees due process, stating that ""No person shall . . . be deprived of life, liberty, or property, without due process of law." This federal right is applied to state governments by the 14th Amendment, which provides that no state shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Due process of law is a fundamental, constitutional guarantee. It means that when the government acts to take away life, liberty, or property, all legal proceedings will be fair and the people affected will be given notice of those proceedings and an opportunity to be heard. When the U.S. Supreme Court decided Goss v. Lopez (419 U.S. 565) in 1975, it held that state compulsory school attendance laws create a property right in education, and on that basis, public schools may not deprive a school aged child of the right to an education without ensuring that a fair process is available.

Under the Individuals with Disabilities Education Act (IDEA), parents and schools may request a “due process hearing” to resolve a dispute. Due process complaints are not filed in a state or federal district court, but rather through the state’s system for enforcing educational rights under the IDEA. In Iowa, a due process complaint is filed with the Iowa Department of Education, and heard by an administrative law judge in a formal proceeding that is much like a trial. At the hearing, both the parents and the school district present arguments and evidence.

When parents file a due process complaint, they are, in effect, suing the school district to enforce their child’s legal right to a free, appropriate, public education. Among the specific kinds matters they may ask the judge to address are:

The current IEP is not meeting the child’s needs
The IEP is not being implemented as written
The school’s refusal to evaluate the child
The school’s refusal or proposal to initiate or change the child’s identification
The school’s proposal or refusal in regard to the child’s educational placement
Disagreements with IEP Team decisions