I. Child Advocacy
A. School Law
1. Special Education
To Get a Due Process Hearing, You Must First File a Due Process Complaint
When all else fails, parents of disabled students may pursue the Due Process Complaint and Hearing procedure.
The Individuals with Disabilities in Education Act (“IDEA”) states: “The procedures required . . . shall include . . . [a]n opportunity . . . to present a complaint . . . with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child . . . .” 20 U.S.C. § 1415(b)(6)(A).
Filing a Due Process Complaint
As a parent of a child with a disability, you may file a Due Process Complaint to challenge any of the following actions of the public agency:
(1) its proposal to initiate the identification, evaluation, or
placement of your child, or the provision of Free Appropriate Public Education (“FAPE”) to your child;
(2) its proposal to change the identification, evaluation, or educational placement of your child, or the provision of FAPE to your child;
(3) its refusal to initiate the identification, evaluation, or
placement of your child, or the provision of FAPE to your child; or
(4) its refusal to change initiate the identification, evaluation, or educational placement of the child, or the provision of FAPE to the child.
Federal law requires that the Due Process Complaint be filed not more than two years after you knew or should have known about the public agency’s action that you are challenging. However, the time limit can be extended by certain types of misconduct by the public agency. Once you file a Due Process Complaint, the public agency must inform you of any free or low-cost legal and other relevant sources in the area. (The public agency is also obligated to provide this information at any time if the parent requests it.)
Due Process Complaint
The Due Process Complaint must remain confidential, except that you must provide a copy to the Local Educational Agency (“LEA”) and to the State Educational Agency (“SEA”). The LEA should have procedures for providing a copy of the complaint in a way that preserves confidentiality.
The IDEA sets out the required content of the complaint. The SEA will have a model form which, if filled out correctly, will meet all the content requirements. Once the LEA receives the Due Process Complaint, it has 15 days to object to the sufficiency of the complaint. If the LEA does make an objection, the Impartial Hearing Officer (“IHO”) must rule on the objection within five days of receiving it. In some circumstances, you can amend the Due Process Complaint to meet the requirements. Regardless of whether or not the LEA objects to the Due Process Complaint, the LEA must respond to it within 10 days of receiving it in a way that specifically addresses the issues that the complaint raises.
Before a Due Process Hearing is held, and within 15 days of receiving notice of the Due Process Complaint, the LEA will convene a resolution meeting. You will be invited to the meeting, along with the relevant members of the IEP Team who have specific knowledge of the facts identified in the Due Process Complaint. The meeting will also include a representative of the public agency who has decision-making authority. The LEA may not have an attorney at the meeting unless you bring your attorney.
The purpose of the meeting is for you to discuss the Due Process Complaint and the facts alleged in the complaint so that the LEA has the opportunity to resolve the dispute. The resolution meeting can be waived, or the parties may agree to go to mediation instead of having the resolution meeting.
If the LEA has not resolved the Due Process Complaint to your satisfaction within 30 days of receiving the complaint, the Due Process Hearing may occur. However, you as a parent must have participated in the resolution meeting first. In fact, if you fail or refuse to attend the resolution meeting, your Due Process Complaint can be dismissed.
If you are able to resolve the dispute at the resolution meeting, you will enter into a legally binding and enforceable settlement agreement. You will then have a three-day agreement review period and may void the agreement within three business days of its execution.
Contact a Special Education Attorney
The Due Process Complaint and Hearing process can be pursued by parents of a child with a disability. You are not required to use a special education attorney. However, remember that the public agency must inform you of any free or low-cost legal and other relevant sources in the area. You are free to choose any attorney who you think can help you through the process. Whether you hire an attorney or not, never give up until you are satisfied that your child is getting the education he or she deserves.