The Individuals with Disabilities Education Act (IDEA) provides specific procedures to safeguard the rights of children with disabilities under the law. One of the most important procedures created by IDEA is the right to an administrative “impartial due process hearing.” Both parents and school districts can file a due process complaint relating to the identification, evaluation, or educational placement of a child with a disability or the provision of a free appropriate public education (FAPE) for the child. This means that if parents believe that their child’s Individualized Educational Program (IEP) is inappropriate, or if they believe that the school district is not complying with the IEP, they may request an impartial due process hearing by filing a due process complaint. School districts also have the right to request due process hearings. As a practical matter, most school district due process complaints involve the district’s objection to a parental request for Independent Educational Evaluations (IEEs).
The Law
IDEA gives the individual states authority to establish fair hearing procedures. Federal law does, however, impose certain requirements. Federal law outlines the qualifications for the hearing officers who consider IDEA claims. At the hearing, each party has the right to have an attorney, present evidence, present witness testimony and cross-examine the opposing party’s witnesses, and compel the attendance of witnesses.
Retain a Special Education Attorney
Although parents are allowed to appear pro se (without an attorney) in a due process hearing, they are far less likely to win when they do so. This is because although an administrative due process hearing is less formal than a case in state or federal court, it is still a trial-like hearing. The due process complaint must contain certain specific information, or it will be dismissed. The parties must meet deadlines for the disclosure of evidence to the other side. In administrative proceedings, the rules of evidence are relaxed. But hearings officers have the power to, and will, refuse to consider testimony or documentary evidence based on those relaxed rules.
Documentation
The administrative due process hearing is the parents’ first and best shot at winning on their child’s claims. At the end of the hearing, the losing party may seek review in federal or state court. It is important to note, however, that the court will generally not allow submission of evidence that was not admitted in the impartial due process hearing. For that reason, it is critical to gather and present all evidence and make your strongest arguments in support of the claims in the administrative due process hearing.
Examples of Cases Commonly Addressed in a Due Process Hearing
- Elaine’s parents request and receive several IEEs. The evaluators all state that she Elaine needs more intensive supports in her current placement, in order to receive meaningful educational benefit. Those supports should include speech and language therapy, occupational therapy, behavioral services, and parent counseling and training. The parents file a due process complaint seeking an order requiring the school district to provide the services going forward in her current public school placement, as well as compensatory education for inappropriate programming in the past.
- Johnny received services pursuant to IEPs developed by his school district for several years, but has not made meaningful progress. His parents get independent evaluations and those evaluators recommend much more intensive programming at a private school that specializes in teaching children with learning disabilities like Johnny has. His parents tell the school district in writing that they will be placing Johnny at the private school and requesting tuition reimbursement. They file a due process complaint seeking compensatory education for inappropriate programming and reimbursement for tuition paid to the private school.
- Jayne’s school district never identified her as a child eligible for special education, but an outside evaluator recently diagnosed her with a specific learning disability in reading. The CSE did its own evaluation and concluded that Jayne is not eligible for services. Jayne’s parents file a due process complaint, asserting that Jayne should have been identified as eligible years earlier and seeking compensatory education. They also request that the hearing officer order the school district to classify Jayne as eligible for special education and provide her with an appropriate program going forward.
If you are having a problem with your child’s school and cannot resolve it at a CSE meeting, consider exercising your right to commence an action against your school district!
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