Educational Due Process Hearings
Our Indianapolis Attorneys Can Provide Guidance
An Educational Due Process Hearing is a hearing that parents can request
under Article 7 of the Indiana Code to have an independent hearing officer
determine whether their special needs child is receiving an appropriate
education or whether they are eligible for special education.
Education law varies from state to state and disciplinary procedures can
vary from district to district in Indiana. The information below will
provide you with some very basic guidelines and help answer some frequently
asked questions. However, the information is not legal advice and is not
meant to be a substitution for seeking the advice of a lawyer. Your case
is unique and you need legal advice that is specifically tailored to fit
your needs. At Hollingsworth & Zivitz, our legal team is here to provide
the advice you need to make the best decisions.
Call our Central Indiana firm today if you are in need of competent counsel.
Determining When a Hearing is Necessary
Under Article 7 of the Indiana Code and the federal law titled the Individuals
with Disabilities Education Act (IDEA) parents of children with special
needs are entitled to challenge their child's eligibility for special
education and/or their child's educational programming if they believe
it does not meet their child's needs. A program may be inappropriate
for a variety of reasons. In some cases a child's Individual Education
Plan (IEP) may be very good, but not appropriately implemented by the
school. In other cases a child's IEP may not take into account their
needs or be insufficient to help them academically advance.
In situations where a parent has been unable to work with a school to get
an appropriate program for their child, a parent has the right to request
a Due Process Hearing to resolve the disagreement with the school regarding
the child's disability, identification, evaluation, eligibility, placement,
services, or reimbursement of services.
Due Process Hearing FAQ's
Should I retain an attorney for a Due Process Hearing?
The law does not require parents to hire an attorney to pursue a due process
case and many parents try to navigate this system on their own. However,
it may be wise to consider hiring a Carmel attorney experienced in this
area. Special education law is a very complex field with both federal
and state laws that may affect a hearing officer's decision. A legal
advocate trained in education law can be very helpful in guiding parents
through the minefield of statutes, regulations, and case law that surrounds
this field. However, it is very important that the attorney that is hired
is one who is trained in education law and has worked in the area of special
education. We advise that you ask whomever you retain about their background,
such as whether or not they have pursued Due Process Hearings before and
how many cases they have worked on for parents in the past.
Can i get compensated for my attorney’s fees if successful?
Under both Article 7 and IDEIA a parent represented by legal counsel during
the proceedings of a due process hearing, appeal, or civil court action
is entitled to reimbursement of legal fees if the parent ultimately prevails.
When there are a number of issues in a case and the parent only prevails
on a few of those issues, schools may argue for a reduction in the payment
of the attorney fees.
How do I request a Due Process Hearing?
A Due Process request is submitted in the form of a formal letter written
by either you or your attorney stating the statutes violated and the issues
to which the Independent Hearing Officer will be asked to decide. This
letter is sent to the Department of Education and then an Independent
Hearing Officer is appointed. In Indiana, the officer is appointed by
the Indiana Department of Education, division of Exceptional Learners
from a rotating list.
What happens after a request is made and the hearing officer is appointed?
The hearing officer will contact the school and your attorney to set up
a time for a pre-hearing conference, most often this is done in the form
of a conference call. At that conference the issues are clarified and
formalized and dates for discovery and the hearing are set. The conference
call includes all the individuals involved, such as the parents, school
representatives and counsel, your own representation, and the IHO.
How long does it take from the Due Process request until the Due Process Hearing?
The time line will vary depending on the situation. For instance, if your
child has been expelled or there has been a change in programming without
your consent, a Due Process Hearing can be schedule as quickly as within 10 days.
What is the time line for a Due Process case?
- You will submit a Due Process Hearing request to your state's education
agency and to the school.
- The education agency will then assign an independent hearing officer (IHO)
to your specific case.
- The school district will file an answer within 10 days of the request or
submit a request for an extension of time to further investigate the matter.
- A resolution session will be scheduled within 15 days of your request to
attempt to resolve the matter.
- Within the 15 day time period the IHO will contact the school and your
attorney to set up a time for a prehearing conference if the resolution
session is unsuccessful.
- The school and parents will both prepare their case for the hearing and-depending
on if there is a need for extensions from either side-a case will generally
go to hearing within 45 to 65 days.
- The hearing will be conducted according to the plan devised at the prehearing
What is a resolution session?
A resolution session is an attempt for both sides to work the situation
out as early as possible. We advise that clients go to the resolution
session and do their best to be clear with the school as to the issues
and what is necessary to resolve them. This is an essential part of solving
the problems and working to find common ground.
What is mediation and is it an option?
Mediation can be good in complex education situations involving multiple
issues or litigation. It is a process where the parties-with or without
their attorneys-sit down with the mediator to discuss the disagreements
between the school regarding the child's disabilities.
Do we need witnesses or experts?
Generally, yes. While parents have the most in-depth knowledge of their
child's case, in most situations the debate is over your child's
medical, physical, psychological, and intellectual needs. For instance,
if your child has a bi-polar disorder and the school is failing to provide
adequate programming, a good behavior modification plan, and accommodations,
it is important that you have a pediatrician, psychiatrist, or other professional
who can help advise the hearing officer as to what is needed and what
is appropriate. If you have a child with autism who is between four and
five years old and you are requesting that ABA therapy be part of their
education, it is essential to be able to have supporting experts to testify
about your child's specific and individual needs. In 90% of cases
parents already have pediatricians, therapists, and other people that
worked with their child. In cases concerning special education eligibility
for children whom the school failed to identify, we can assist you in
finding qualified evaluators and individuals who focus on working with
your child's specific disabilities.
How far back can we go with my child's records when showing the school's
history of failure?
Both IDEA and State Law place a two year statute of limitations on Due
Process cases. In rare situations the issue can be pursued further.
What happens at the Due Process Hearing?
A Due Process Hearing is like a "mini-trial." Each side presents
an opening statement and calls witnesses. The witnesses include school
personnel, physicians or psychologists, therapists, and parents. Both
will call their own witnesses to illustrate their argument.
What happens after the hearing?
At the end of the hearing, the officer will state when the decision will
be made. Once your attorney receives the decision by mail, they should
alert you right away. Each party has a right to appeal the decision. Any
appeal must be filed with the Board of Special Education Appeals (BSEA)
within 30 days of the receipt of the decision. Either party can request
an extension of time to submit their appeal (called a Petition for Review)
to the BSEA. A successful appeal will have to show that the hearing officer's
decision was both arbitrary and capricious, an abuse of discretion, contradictory
to the law or a constitutional right or privilege, outside of their ruling
power, in violation of an established power, or unsupported by the provided evidence.
Can I get attorney’s fees in mediation?
It depends. If the mediation was requested with a pending Due Process Hearing
set and the result is a settlement agreement between the parties, then
attorney fees can be included as part of the agreement. If there is no
request for Due Process, each party will pay their own fees.
Indiana Hearing Officers
The following individuals serve as hearing officers in Indiana in Article
7 and IDEIA special education due process cases:
815 W. 96th St.
Indianapolis, IN 46260
Dr. Thomas Huberty
201 N. Rose Ave.
Bloomington, IN 4740
Terry R. Curry, Esq.
111 Monument Circle, Ste. 302
Indianapolis, IN 46204
Dr. Jim Jacobs
School of Education
Indiana State University
Terre Haute, IN 47809
Attorney at Law
Indianapolis, IN 46205
9529 Walnut Dr.
Munster, IN 46321
Phone: 708-755-1900 ext. 241
Dr. Joseph McKinney
Attorney at Law
Ball State University
TC - 915
Muncie, IN 47306
Attorney at Law
P.O. Box 783
Avilla, IN 46710
Dr. Melody Dilk
Attorney at Law
Professional Psychological Services
10293 N. Meridian St., Suite 375
Indianapolis, IN 46290