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The Individual with Disabilities Education Act guarantees that every child with a disability is entitled to a free and appropriate public education in a least restrictive environment. Whenever there is an irreconcilable disagreement between the parents and the school regarding a child’s Individualized Education Program (IEP) either party may choose to implement due process. Due process is a legal proceeding that is implemented when either party involved with the IEP process disagrees on an aspect of a child’s IEP. For instance, parents may choose to utilize due process if the school refuses to provide a support that the parents feel is necessary for their child to receive an appropriate education. However, the school may also request a due process hearing in specific cases. For example, if a school feels that a child may need special instruction or related services and parental consent is denied, a school may initiate “due process hearing procedures to seek to override the parents’ denial of consent for an initial evaluation.”1 As a parent, you must realize that due process is a serious endeavor and can be an expensive, time consuming, and arduous process that must not be taken lightly. Wrightslaw, a premiere resource for information regarding special education law and advocacy, describes special education cases as “similar to medical malpractice cases, with battles of expert witnesses, and the emotions of bitterly contested divorce cases with child custody and equitable distribution issues.”2 Unfortunately, some situations warrant the use of due process when parents and public agencies are unable to agree on a child’s IEP and have exhausted all other options towards a compromise.
To initiate due process the parent or public agency must file for a due process complaint. The due process complaint must consist of the name of the child, the address of the child’s residence, the name of the school the child is attending, a description of the nature of the child’s problem relating to the proposed initiation or change with facts relating to the problem, and a proposed resolution to the problem to the extent known by the party at that time.3 Under IDEA, parents or the school must “request an impartial due process hearing within 2 years of the date the parent or agency knew or should have known about the alleged action that forms to the basis of the complaint…”3 However, some states have different time limitations for requesting this type of hearing.3 A resolution session, designed to resolve the complaint before further action is taken, must be convened by the local educational agency (LEA) within 15 days of receiving the parent’s due process complaint, but if the LEA fails to reach a resolution to the parent’s satisfaction within 30 days the due process timeline begins.4
Either party may elect to request to resolve disputes through mediation before filing a due process complaint against the public agency.4 Mediation is “a process conducted by a qualified and impartial mediator to resolve a disagreement between a parent and public agency.”4 Under IDEA, the state is required to “maintain a list of individuals who are qualified mediators and knowledgeable in laws and regulations relating to the provision of special education and related services.”3 The process can only occur if both parties voluntarily agree to mediation.3 Either party is able to appoint an attorney for the mediation process, but the presence of an attorney is not necessary. The benefits of mediation as oppose to due process include allowing each party to express their opinions in a cooperative environment, both parties must agree on a solution instead of abiding by a the decision of a hearing officer, and mediation is low cost, especially without the presence of attorneys.5 The discussions that occur throughout the mediation process are to remain confidential and cannot be used against either party if a subsequent due process hearing is required.3 Wrightslaw recommends reading Getting to Yes by Roger Fisher as a way for parents to familiarize themselves with how they can effectively participate in a the mediation/negotiation process.6
Like any court case, it is within an individual’s rights and wise to retain an attorney or, in this case, a special education advocate, who will ideally have a background in law or education, to help increase the chances of success during due process.7 In 2006, the Supreme Court ruled that while parents who win their case are to be reimbursed for attorney’s fees, they are not to be compensated for expert witness fees.8 This is a critical ruling because “few parents can afford the thousands of dollars needed to pay qualified medical, educational, and technical experts.”9 Expert witnesses are instrumental to prevailing in these types of cases as the Supreme Court ruled that the burden of proof is to be placed upon the party filing the complaint.10 In the past, legislators have proposed the IDEA Fairness Restoration Act Bill, which would allow a parent to recover expert witness fees accumulated in the due process hearing, because without “the ability to recover expert costs, the due process playing field ceases to be level or fair.”9 Unfortunately, attempts to pass this legislation have fallen short and parents are still forced to pay the expense of expert witnesses in due process hearings.
Parents should be familiar with all the aspects of a due process hearing for their state before filing a due process complaint. Similar to procedural safeguards, certain features of due process can vary from state to state. Building on a previous example above, there is typically a 2 year time limitation for a party to request due process based on an alleged action, but this time limitation may be different dependent on the state’s laws.3 National Autism Network’s State Resource Guide (link) is a great resource for special education laws by state. Parents should also familiarize themselves with the IEP process so they know what to expect before their first meeting with the rest of their child’s IEP team. All parents should bring a device for recording meetings to have as an indisputable record of what occurred at the meetings should the need for due process arise. Parents should visit Wrightslaw’s page on Due Process Hearings for more tips, answers to questions, and advice concerning due process and the IEP.