In this Issue:

Due Process

Friends and Caregivers,

Disagreements are a fact of life, but for children with disabilities, time and appropriate help are so important that Congress included a set of "Procedural Safeguards" (formal steps to take when you have concerns about what the school district is offering or refusing to do) in IDEA to make sure that a child's right to a Free Appropriate Public Education (FAPE) is protected. Filing for due Process is a key part of those safeguards. This month's Special EDition discusses due process hearings under IDEA (Individuals with Disabilities Education Act).

What is Due Process?
Whenever possible, it is best to try to work out disagreements related to special education directly with the school district and IEP team. However, when this does not work, you are NOT powerless. The next step to consider is filing for "Due process" (this includes whether or not your child is eligible for services at all). Due Process is a legal term that describes a government's commitment to a system of fair procedures to uphold a citizen's legal rights. In the context of IDEA and special education, due process ensures that your child with a disability (or suspected disability) receives an appropriate education based on his/her individual needs by outlining a process of steps to take when disputes arise ending in a formal hearing where a judge makes the final determination. A due process hearing is a way for you to resolve disagreements with your school district when you can't find a solution through the IEP process.

What to do BEFORE you file for a Due Process hearing:
If you disagree with a school district about your child's eligibility, placement, program needs, supports, or related services, we recommend that you first try to resolve the disagreement with the student's IEP team and special education administrator. If this does not work, you can file a request for a Due Process Hearing. Even before taking that step, you can request "Mediation Only" (sometimes called a "pre–due process mediation"), in which a mediator helps you reach an agreement with the District before you file a formal hearing request. If that does not happen, or if you are not satisfied with the outcome, you can then file for a Due Process Hearing, which is a procedure in which a state hearing officer decides which side is correct in the dispute based on the evidence presented. This is one reason why documenting your concerns about your child's progress is so important.

How do I file a request for a Due Process Hearing?
The first step is to file a Due Process Complaint. The Due Process Complaint is a letter that must include the student's name and address of residence, the name of the school the student is attending, parent or other guardian contact information, a description of the disagreement(s), and the parent's solution to the problem. For example, the District may want to end speech therapy services. If you disagree, your solution would be to continue it for another year and then reevaluate progress. Different states have different procedures for writing and submitting the complaints. Contact your state's Department of Education for more detailed instructions on how to file the complaint.

If I file a Due Process Complaint, does that mean I have to go through with the Due Process Hearing?
No. Filing the complaint does not always lead to a Due Process Hearing. Often the disagreement is solved in a "resolution session" before the hearing. The parent and school district may also agree to waive the resolution session and participate in a mediation session instead, but a mediation or resolution session is necessary before proceeding to the hearing. For more information about mediation and resolution sessions, look at our "Additional Resources" in the sidebar.

What happens to my child after I send the Due Process Complaint?
From the time that a parent files the Due Process Complaint until the end of the Due Process Hearing, the student has the right to continue with the current IEP and placement (with a few exceptions involving safety issues). Neither can be changed until the state hearing officer has made a decision.  This is called "Stay Put."

Do I need an attorney or advocate to file for Due Process?
You are not required to have an attorney, but most families find it necessary at some point in the process. We have provided links below to help you find one in your area.

What happens in a Due Process Hearing?
Due Process Hearings tend to be similar to a civil court trial. The hearing will begin with both sides giving opening statements about the disagreement. Then, the parties will call witnesses to support their case. They will also question each other's witnesses. Both sides may also submit written documents as evidence. The hearing ends with each party summarizing their argument. The state hearing officer then makes a decision based on the evidence that the school district and parent provided.

Are there any issues about a student with a disability's education that a Due Process Hearing cannot address?
Yes. Due Process Hearings only deal with disagreements over what should be included in the student's IEP and where the student's IEP should be put into action. They do not handle cases if the school district breaks the law or does not do what it agreed to in the IEP.  Also, the hearing cannot address any issues that were not included in the Due Process Complaint, unless both sides agree to include them.

© 2013

Advocacy Tip of the Month:

Always try to resolve disagreements locally but if you can't, don't wait to long to file for a hearing. There are important timelines to consider.

Additional Resources:

DREDF's Guide for California Parents has a more complete explanation of Due Process Hearings,  Resolution Meetings, and Mediation Sessions.

Wrightslaw has advice on Due Process Hearings. This includes tips and strategies for letter writing, getting an attorney, and preparing for the hearing.

In California, The Office of Administrative Hearnings (OAH) has a list of free or reduced cost attorneys and advocates who represent parents in Due Process Hearings. Another option is to contact COPAA (Council of Professional Attorneys and Advocates).

"Understanding Special Education Due Process Hearings" is an OAH guide to Due Process Hearings.

The NICHCY has the official laws and regulations for Due Process Hearings.

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