I. Child Advocacy
A. School Law
1. Special Education
A Due Process Hearing Can Resolve Your Special Education Dispute
One of the final steps that you as a parent of a child with a disability can take in resolving your special education dispute with the public agency is the Due Process Hearing.
The Individuals with Disabilities in Education Act (“IDEA”) states: “Whenever a [Due Process] complaint has been received . . ., the parents . . . shall have an opportunity for an impartial due process hearing . . . .” 20 U.S.C. § 1415(f)(1)(A).
Impartial Due Process Hearing
I described the steps to take before a Due Process Hearing can take place in the article titled “To Get a Due Process Hearing, You Must First File a Due Process Complaint.” Once you have taken all the required steps, the State Educational Agency (“SEA”) or the public agency directly responsible for your child’s education must conduct the Due Process Hearing.
The person who acts as the judge at the hearing is the Impartial Hearing Officer (“IHO”). The IHO must not be an employee of the public agency involved in your child’s education and must not have a personal or professional interest that conflicts with his or her objectivity in the hearing. The IDEA contains other competency requirements for the IHO.
As a parent of a child with a disability, the IDEA affords you several rights with respect to the Due Process Hearing. Among those are the rights to:
(1) be accompanied and advised by counsel;
(2) present evidence and confront, cross-examine, and compel the attendance of witnesses;
(3) prohibit any evidence at the hearing that has not been previously disclosed;
(4) obtain a record of the hearing; and
(5) written (or electronic) findings of fact and decisions.
Additional rights that you have as a parent include the rights to:
(1) have your child present at the hearing;
(2) open the hearing to the public; and
(3) have the record of the hearing and the findings of fact and decisions at no cost to you.
After the hearing, the IHO will render a decision on whether or not your child received the Free Appropriate Public Education (“FAPE”) that the IDEA requires. In most cases, the IHO’s decision must be based on substantive grounds. However, the IHO may find a procedural denial of FAPE under some circumstances. In the ordinary case, the final decision is due within 75 days after the public agency’s receipt of the Due Process Complaint.
Once the IHO has made his or her decision, the public agency has a duty to share the decision, but only after deleting any personally identifiable information. After removing the identifying information, the public agency must transmit the findings and decisions to the State advisory panel and must make those findings and decisions available to the public.
Appeal of Decisions
The IHO’s decision is final, unless you or the public agency appeals it. Unless the Due Process Hearing was conducted by the State Educational Agency (“SEA”), the appeal will go to the SEA. An official of the SEA must then conduct an impartial review of the findings and the decision. In the ordinary case, the SEA’s decision is due within 30 days after its receipt of the request for review. The SEA official’s decision is final, unless you or the public agency brings a civil action on the decision.
After exhausting your remedies through the SEA, you have the option of filing a lawsuit against the public agency. You must decide quickly, however, because you have only 90 days after the final state decision to file suit. You may file the lawsuit in state or federal court; the choice is yours. The trial court will then receive the records from the Due Process Hearing, hear additional evidence if presented, and rule on the case in the way that the court determines to be appropriate.
It is not necessary, but is within the court’s discretion, to award you reasonable attorneys’ fees if you are found to be the “prevailing party.” Fees awarded by the court must be based on rates common in the community in which the dispute arose for the kind and quality of services furnished. The court cannot increase the amount for fees awarded, but it can reduce the amount.
Contact a Special Education Attorney
The Due Process Complaint and Hearing process, including the appeals process, is lengthy and is subject to federal, state, and local rules. As a parent of a child with a disability, you may pursue the entire process without ever having engaged an attorney. However, if you feel you would benefit from the assistance of a special education attorney, you should contact one who can help you navigate through the process.