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.

Special Education Due Process Hearings Part 3: What Happens at the Hearing?

Special education due process hearings are formal administrative hearings, and have many features similar to that of trial proceedings. In Iowa and the majority of states that have one-tiered due process systems, an administrative law judge (ALJ) presides over the hearing. There is no jury. Although the law allows parents to represent themselves in due process proceedings, given the legal nature of the proceedings, most are represented by attorneys.

The parent(s) and public agencies whose names appear in the caption at the top of the due process complaint are called the "parties." If the parent files the complaint, then he or she is called the "complainant" and the school district, area education agency, and any other public education agency named are the "respondents." The complainant is the party who must carry the burden of proof on one or more issues of the case in order to prevail.

Prior to the hearing, the IDEA provides parents with the right to decide whether or not the hearing will be open to the public.

The hearing begins when the ALJ enters the hearing room and announces that the hearing is in session. It’s important to remember that whenever the ALJ enters or exits the hearing room, the parties, their attorneys, and all persons attending the hearing must rise and remain quietly standing until the ALJ is seated or has departed the room.

Due process hearings are stenographically recorded by a court reporter so that there is an official transcript of the testimony given during the proceedings. In order for the court reporter to make an accurate record of the proceedings, it is important that all witnesses and attorneys speak clearly, refrain from interrupting, and avoid using nonverbal responses instead of "yes" and "no."

After the ALJ has convened the hearing, he or she will give the complainant’s attorney an opportunity to give an opening statement. An opening statement generally includes an overview of the evidence that is expected to be presented. After the complainant’s attorney has finished, the ALJ will provide the same opportunity to the attorney or attorneys for the Respondents. In some cases, the ALJ will allow the respondents’ attorney to delay the opening statement until after the complainant’s attorney has finished presenting evidence, and it is the respondents’ turn to present their evidence.

After the opening statements, the ALJ directs the complainant’s attorney to present his or her client’s case. The complainant’s attorney can only raise the issues that were stated in the due process complaint filed with the state department of education, unless the other party agrees otherwise. During the hearing, each party has the opportunity to present their views using witnesses, testimony, documents, and legal arguments that each believes is important for the ALJ to consider in order to decide the issues in the case. Parties generally present evidence by calling witnesses and asking questions.

In presenting evidence, each party must abide by the state’s Rules of Evidence which govern what evidence is admissible, and how it is presented. If the attorney for one of the parties believes the other party is not following the rules, he or she may raise an objection. The ALJ will then either sustain or overrule the objection, or defer a ruling until a later time.

The complainant’s attorney examines (i.e., questions) his or her witnesses and evidence first. After he or she has examined a witness, the respondents’ attorney has the opportunity to cross-examine the witnesses. When the complainant’s attorney has finished putting on witnesses, then it is the respondents’ attorney’s turn to present their case. As before, after the respondents’ attorney has finished examining his or her witnesses, the Complainant’s attorney has the right to cross-examine them.

Once the parties have completed examining the witnesses, the ALJ provides each party’s attorney with an opportunity to make closing arguments. Closing arguments must be based upon the evidence produced in trial. At the close of the hearing, the ALJ may ask the attorneys to submit post-hearing briefs which set out the facts and points of law of their clients’ cases. After the hearing, at no cost to the parent, the parent’s attorney receives a transcript of the hearing.

The ALJ’s written decision of the ALJ is later issued and copies are immediately sent to the parties. The ALJ must make a decision on substantive grounds based on a determination of whether the child received a free appropriate public education (FAPE). In matters alleging a procedural violation, an ALJ may find that a child did not receive a FAPE only if the procedural inadequacies:

1. Impeded the child’s right to a FAPE;
2. Significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to the child; or
3. Caused a deprivation of educational benefit.

The next in this series of articles will address matter of what a parent may do if he or she disagrees with the ALJ’s decision.

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.

Good Points from Greg Branch Opposing AASA Statement on Due Process and Mediation

This morning I would like to thank California special education attorney-blogger, Greg Branch, for bringing light to a number of the reasons why the recent proposals of the School Superintendents' Association (AASA) are flawed and should not be followed. 

I encourage readers to read Mr. Branch's blog article  and Examiner article  Examiner article in which he thoughtfully explains why the Individuals with Disabilities Act (IDEA) is a critical source of civil rights for children with disabilities.

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.

AASA, the Emperor's New Clothes, Special Education Mediations and Due Process Hearings

In Hans Christian Andersen's story, The Emperor's New Clothes, a vain king with an insatiable appetite for fine clothing, finds himself marching in a parade wearing nothing but his birthday suit. He is the victim of his obsession with sartorial splendor, and of a pair of swindlers who have told him that his "new clothing" is made from such wonderful stuff that it is invisible to anyone who is incompetent or stupid. After an elaborate charade in which the king is "dressed" in the new garments, his lord chamberlain, ministers and advisors who are fearful of losing their jobs, public recognition, and authority, heartily engage in the fraud proclaiming, "How beautiful the Emperor's new clothes are!" Notwithstanding their falderal, upon seeing the king walking naked in public, a small child says, "He doesn't have anything on!" Although the king knew the child was right, he decided that the parade would go on, and holding himself even more proudly, he continued the procession with the lord chamberlain walking along behind him carrying the train of his nonexistent coat.

This story came to mind when I read the 30 page paper issued on April 8, 2013, by the AASA (American Association of School Administrators). In it, the AASA recommends that Congress completely eliminate special education due process hearings and remove the provisions of the IDEA that make mediation agreements legally binding and allow attorneys to represent parents at those mediations. The AASA proposes to replace the procedures with state-approved IEP meeting facilitators, non-binding mediation, and provisions allowing parents to file law suits directly in federal court (think $$$ for the parents) without an opportunity to resolve disputes through state department of education administrative hearings.  Since due process hearings are less expensive than federal court proceedings, this would place an additional burden on parents who need to challenge school decisions.

What kind of thinking underlies proposals that would essentially place the fox in charge of the hen house? Are the AASA’s recommendations merely based on an arrogant and naive assumption that public education systems and their personnel are so highly expert and scrupulously thorough that they identify and accurately evaluate each and every child with a disability in every area of their suspected disabilities, write IEPs in a manner that will meet each child’s unique needs and conforms to the law, and that the school personnel who implement them are all equally competent and effective, and neither harbor prejudices nor have their hands tied by restrictions in regard to the assistance they are allowed to recommend or provide?

I don’t think so.

It seems more likely that like the king in the story above, the AASA and its members know when the education systems and personnel they represent aren’t appropriately garbed. But instead of acknowledging and taking responsibility for the nakedness of those systems and personnel, they prefer to advocate for the elimination of the mediation and due process hearing procedures that have an inconvenient tendency to reveal that public education agencies and school districts don’t always operate in compliance with the IDEA and its implementing regulations. By extension, the AASA would probably also support the elimination of studies, such as the one conducted by the federal Department of Education in 2009, which found that only twenty-eight states met the IDEA’s compliance standards.

If the AASA’s proposals demonstrate anything, they demonstrate the kind of overreaching on the part of public school agencies that Congress anticipated when it enacted the portions of the IDEA which afford procedural protections to the parents of children with disabilities.  I join with COPAA (Counsel of Parent Attorneys and Advocates) which has stated that the AASA document is nothing more than a shameful attack on parent and student civil rights.  See COPAA's statement at:  http://www.copaa.org/news/121292/AASA-Document-Nothing-More-Than-A-Shameful-Attack-on-Parent-and-Student-Civil-Rights-.htm

Parental Rights in Special Education - Prior Written Notice

The Individuals with Disabilities Education Act's (IDEA) implementing regulations require that a school district give written notice to the parent of a child with a disability within a reasonable time before:

(1) the school plans to take (or refuses to take) actions proposed by either the parent or the school district related to the identification, evaluation, or educational placement of the child; or

(2) the school plans to take (or refuses to take) actions proposed by either the parent or the school district related to the provision of a free appropriate public education (FAPE) to the child. (34 CFR §300.503(a)).

Prior written notice must include:

• a description of the action proposed or refused by the school;
• an explanation of why the school proposes or refuses to take the action;
• a description of each evaluation procedure, assessment, record, or report the school used as a basis for its decision;
• a statement that the IDEA’s procedural safeguards provide the parents of the child with a disability with rights and procedures for resolving disputes related to the subject matter of the prior written notice, and how the parents can obtain a copy of them;
• resources for parents in order to obtain assistance in understanding these procedures;
• a description of other options that the IEP Team considered and the reasons why those options were rejected; and
• a description of other factors relevant to the school’s proposal or refusal. (§ 300.503(b))

For example, a parent must receive this notice:

1. when the school wants to conduct an initial evaluation of the child;
2. when the parent has asked for the child to be evaluated and the school denies the request;
3. when the school wants to initiate or change the child’s identification as a "child with a disability;"
4. when the school proposes or refuses to provide a particular educational placement for the child;
5. when the school wants to change the child’s educational placement;
6. when the school wants to change aspects of the special education or related services that the child is receiving; and
7. when the school refuses a parent’s request in regard to the educational services the child is receiving.

If a parent has made a request of the school, or the school has proposed or refused to take action, and the parent has not received the required prior written notice, the parent should ask the school to provide it.  I recommend that parents do this by email, and retain both that email and the school district's response in order to create a record.