Educational Due Process Complaints
The Educational Due Process Complaint
An educational due process complaint is one mechanism that you will use for disputes about your child’s education. 34 CFR §§300.507-300.516. You can file a due process complaint related to the identification, evaluation, educational placement, or the provision of FAPE.
A due process complaint must be distinguished from a civil lawsuit. It is an administrative filing with your state education agency requesting an Independent Hearing Officer (IHO), in some states called an Administrative Law Judge (ALJ), to make a decision as to provision of FAPE for your child. In a due process matter, you cannot get “damages” for pain or suffering or lost wages. It was originally designed to be easily accessed by parents to get a quick and effective resolution of procedural and substantive educational issues affecting FAPE. Quite unfortunately, this is no more in many states.
Stay-Put
When you file for due process, you are able to “freeze” your child’s programming at the last agreed upon program. Stay put is a procedural protection in IDEA that can be utilized when you file for a due process. This can be critical and essential. For children with IEPs, the day the due process is filed and during the entire time period until a hearing officer can decide the case, the student must remain in the current agreed upon educational placement unless the parents and the district agree on a different placement. 34 CFR 300.518(a).
You can file a due process at any time during the school year if your child is not receiving appropriate services. However, if the school is getting ready to make major changes in your child’s educational programming, such as removing speech therapy or removing your child from a private therapeutic or residential placement or other programming that you fundamentally disagree with, it will be critical that you file a due process complaint before there are changes in the IEP or within ten days of the completed IEP. Stay-put will force the school to keep the last agreed upon IEP in place (as well as all of its programming) until a hearing officer rules on the case or you reach an agreement with the school.
The “Stay-Put” provision does not require you to argue to the hearing officer that your child’s last agreed upon IEP must be enforced. Under IDEA it acts as an automatic injunction (the school has no power to make changes) and it does not require you to take any action. 34 CFR 300.518(a). Casey K. v. St. Anne Cmty. High Sch. Dist. No. 302, 43 IDELR 1 (7th Cir. 2005), cert. denied, 110 LRP 67820, 546 US 821 (US 2005).
“Stay-Put” For Students Not Yet Eligible
If your child has not been deemed eligible for special education yet but you have let the school know that your child has a disability, IDEA allows you to assert any available IDEA protections. This can come in very handy if the school is trying to remove your child for disciplinary reasons that you believe are related to their disability. In that case stay put can be used in some situations to keep your child in school until a hearing officer can review your case. However, it is critical to show that the district had knowledge that your child had a disability before the occurrence of the behavior that precipitated the disciplinary action. 34 CFR 300.534(a).
IDEA sets out three circumstances under which a district will be deemed to have knowledge that the student has a disability:
The parent has expressed concern in writing to district supervisory or administrative personnel, or to one of the child’s teachers, that the child is in need of special education and related services. 34 CFR 300.534(b)(1).
The parent has requested an evaluation of the child. 34 CFR 300.534(b)(2).
The child’s teacher or other district personnel have expressed specific concerns about a pattern of behavior demonstrated by the child directly to the director of special education or to other district supervisory personnel. 34 CFR 300.534(b)(3).
THE DUE PROCESS HEARING: HOW IT WORKS
Step 1: Due process complaint is filed with state education agency.
The request for a due process hearing is filed with your state’s education agency and the school simultaneously. Many states have the complaint forms online on their DOE website. The due process complaint must allege a violation that occurred not more than two years (unless the state has an explicit time limitation) before the date the parent or public agency knew or should have known about the alleged violations. 34 CFR § 300.507(a)(2).
A due process complaint must meet the content requirements in 34 CFR § 300.508(b). Therefore, it must contain:
The name of the child
The address of the residence of the child
A description of the nature of the problem, including relevant facts
A proposed resolution of the problem to the extent known and available to the party at the time
Due process documents are what are called “notice pleadings.” They do not need to list every fact, but they do need to be specific enough that the hearing officer and the school can clearly ascertain the legal issue and an overview of the related facts.
Step 2: A hearing officer is assigned to your case by the state agency.
Once your state has the complaint, an Independent Hearing Officer will be assigned to your case. Under 34 CFR § 300.511(c) a hearing officer must not be: 1) An employee of the SEA or the LEA that is involved in the education or care of the child; or 2) A person having a personal or professional interest that conflicts with the person’s objectivity in the hearing.
An Independent Hearing Officer must: 1) Possess knowledge of, and the ability to understand, the provisions of IDEA, federal and state regulations pertaining to IDEA, and legal interpretations of IDEA by federal and state courts; and 2) Possess the knowledge and ability to conduct hearings in accordance with appropriate, standard legal practice; and 3) possess the knowledge and ability to render and write decisions in accordance with appropriate, standard legal practice. 34 CFR § 300.511(c)(1)(ii)-(iv). Depending on how your state’s system is set up, your attorney or you will receive a document with the individual’s assignment and sometimes a preliminary scheduling order that provides the timeline of the case. If you do not have an attorney, the hearing officer may contact you directly, but you cannot discuss the substance of your case with the hearing officer without the school’s attorney or representative on the phone. You can discuss procedural matters such as scheduling.
Step 3: The school files its response.
Within ten days of your filing, the school must provide a “response” to your complaint. The law requires that the LEA (school) provide you written notice meeting the legal requirements regarding issues contained in the complaint. This will also be provided to the hearing officer.
The school may also file a “Motion for Specificity” or “Motion to Dismiss for Insufficiency.” This motion argues that you did not include the appropriate information to have a valid filing. If this is filed, you will need to respond as ordered by the hearing officer.
Section 300.508(d)(1) provides that the due process complaint must be deemed sufficient unless the receiving party notifies the other party and the hearing officer in writing within fifteen days of receiving the complaint that the receiving party believes the complaint does not meet the content requirements in 34 CFR § 300.508(b).
Under 34 CFR § 300.508(d)(2) the hearing officer has five days to make a determination if your complaint meets the requirements of the law. If it is not sufficient, the hearing officer’s decision must identify how the notice is insufficient so that the filing party can correct the due process complaint by filing an amended due process complaint.
Step 4: The Resolution Session or Mediation
The resolution session is designed to try and get a resolution of the issues, short of the hearing and early in the process. The requirements for the resolution process are found in the regulations at 34 CFR § 300.510. Within fifteen days of the notice of the parent’s due process complaint, the school district must convene a resolution meeting with the parents. The resolution session is an opportunity for the school to try to resolve things quickly for the parent. If you do not bring an attorney, the school cannot bring an attorney. The parents and the school may waive the resolution session for a mediation or decide not to have one. However, the decision to not have a resolution session or to have a mediation must be joint. The parents then may schedule the mediation with the school, and it does not have to be within the fifteen days. If you refuse to attend a resolution session, your case may be dismissed.
Resolution sessions are not confidential. This means anything you say at the session can be used for the purposes of the school’s defense. It is important that you come to the resolution prepared, as well as understand these are not confidential settlement negotiations. Resolution agreements that are created within the session can be voided by the parent within three days of the session. You will need to notify the other side and the hearing officer if you decide that the agreement is not appropriate for your child’s needs.
Step 5: An initial prehearing conference call is held.
The hearing officer will contact you (or your attorney) and the school to set up a prehearing conference call or meeting. There may be a number of these during the course of your hearing. At the prehearing conference the following will happen:
Dates set for hearing
Discovery deadlines
Expert witness reports or deadlines
Issues formalized or clarified
Resolution/mediation outcome
Case status
Other issues depending on your case
Discussion of Discovery (depending on your state).
Step 6: Discovery and the Exchange of Exhibit Binders.
Five days before your case proceeds to hearing, all documents that you and the school intend to introduce at hearing must be exchanged. Some hearing officers will establish an earlier deadline for this. All of your evidence needs to be marked with a page number or exhibit number and must be provided to the opposing party and in some cases the hearing officer at the deadline set. I typically place all of my exhibits in a binder and have all of the pages numbered.
Step 7: A Due Process Hearing is Held.
A due process hearing is like a mini trial. The hearing must be conducted at a time and place that is reasonably convenient to the parents and child involved. 34 CFR § 300.515(d).
There is an opening statement, questioning of witnesses, and a closing statement. Each side is allowed to present their case. The Petitioner (whoever has requested the due process—generally the parent) goes first, and then the respondent follows and presents the defense. A court reporter is there, and he or she will swear witnesses in and will record the hearing. Most hearings take place in school administration buildings or even the schools themselves.
Closing statements may either be in writing or be oral. After the closing statement, the hearing officer usually has two to four weeks to render their decision. You should either be provided a copy of the transcripts as it is produced or it should be provided to you by the hearing officer. 34 CFR § 300.512(a)(4) and (5). The school is responsible for the cost of the transcripts. 34 CFR § 300.512(c)(3).
Step 8: The hearing officer’s decision is reached.
Once a hearing decision is reached, you will be sent a copy. Hearing decisions must be implemented within the time frame prescribed by the hearing officer or if there is no time frame prescribed by the hearing officer, within a reasonable timeframe set by the state as required by 34 CFR §§300.511-300.514.
Step 9: Attorney’s Fees Suit or Appeal
After the hearing officer has issued a ruling, you will generally have thirty days to appeal the decision into the federal courts if you do not agree with the decision. If you are the prevailing party, your attorney will begin negotiation for his or her fees or will file a fees suit in order to ensure that they are able to get some or all of your outstanding attorney’s fees.
Expedited Due Process.
An expedited due process hearing is a hearing involving a due process complaint regarding a disciplinary matter, typically when a student has a pending expulsion from the school system. The requirements for expedited due process hearings are found in the regulations at 34 CFR §§ 300.532-533. This has much shorter timelines in order to ensure that the student is able to return to school if the hearing officer finds that the school acted inappropriately or did not correctly conduct an MDR.
A hearing officer also has the authority to determine whether the child’s removal from the child’s placement violated 34 CFR § 300.530 which includes whether a child’s behavior was a manifestation of their disability, and whether maintaining the child’s current placement is substantially likely to result in injury to the child or to others. The expedited due process hearing must occur within twenty school days from the date that the parent’s due process complaint requesting a due process hearing is filed.