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Educational Due Process Hearings

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Understanding Educational Due Process

Under the Individuals with Disabilities Act (IDEA) when a parent disagrees with the educational services being provided to their child they can request to have an independent hearing officer make a decision as to their child’s special education identification, evaluation, services, placement and needs, or if the school has failed to provide a Free and Appropriate Public Education (FAPE).

FAPE is the standard by which all decisions are based. “Free” means that a child with disabilities will be educated at no cost to the parent. If the student needs a residential placement in order to progress, the school must bear the costs of this placement. If the school has failed to make a student eligible for services, they must bear the cost of the compensatory services and often the costs the parent’s incurred due to the school’s failure. “Appropriate” means that the educational services provided to the student must be appropriate specially for that child’s needs. It must be tailored to provide services across areas of need including academic, behavioral, and psychological and the placement of the child must be appropriate. “Public” is the public and charter school system. Regardless of the nature of your child’s disability they have the right to be educated by the public school system. The public school system also has the obligation to pay for private placements if they are not able to educate the child due to their disabilities. “Education” means that every eligible school age child with a disability is entitled to educational services outlined in their IEP documents. The education must prepare your child for the future – further education, employment and independent living.

Your case is unique and you need legal advice that is specifically tailored to fit your needs. At Hollingsworth & Zivitz, PC, our legal team is here to provide the advice you need to make the best decisions. 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.

Due Process Hearing Frequently Asked Questions

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 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 IDEA 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.

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.

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 conference.

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, however in Texas the statute is one year. 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.

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.

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