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Due Process Hearings in Early Intervention Disputes

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A Due Process Hearing is a formal legal proceeding, very similar to a trial, in which both sides of a dispute present testimony and evidence and can ask questions of the other side's witnesses. Like a civil trial, it begins with the filing of a legal complaint. Both the parents and the Early Intervention (EI) agency can be represented by an attorney, although this is not required. Nevertheless, because of the similarities to a trial, many families find it difficult to represent themselves in a Due Process Hearing and find that they need to hire an attorney to assist them with their case. EI agencies almost always have attorneys representing them in Due Process Hearings. The EI agency is required to provide families with information about free or low-cost legal services if the family asks or when the family files a Due Process Complaint.

The rules for Due Process Hearings vary by state. Below are general guidelines. Your Procedural Safeguards document will provide you with your state-specific rules.

Due Process Complaint: The Due Process Complaint must state in specific terms how your child's rights have been violated. In general, all alleged wrongdoings must have occurred within 2 years before the complaint was filed unless the EI agency failed to give the parents required information or unless the EI agency misrepresented information to the family. At the Due Process Hearing, only issues contained within the Due Process Complaint can be discussed.

Resolution Meeting: The Individuals with Disabilities Education Act (IDEA) requires a "resolution session" when a Due Process Complaint is filed on behalf of a Preschool or School-aged child. While IDEA does not mandate resolution sessions for children under the age of 3, many states have extended the right to a Resolution Meeting to families of infants and toddlers. Resolution Meetings bring families and EI personnel together to try to work out a solution. The education agency may not bring an attorney to a Resolution Meeting unless the parents choose to bring one.

The Hearing Itself: Each side will have to share any evidence that will be used in the hearing with the other party before the hearing. An impartial Hearing Officer with knowledge of Early Intervention decides the dispute for the parties. Parents are entitled to receive a free transcript of the hearing and a free copy of the Hearing Officer's findings of fact and decision.

The side that files the request for a Due Process Hearing has the responsibility of proving its case. This means that the parents, who are usually the party to file, bear the "Burden of Proof" in most cases. A written decision that includes findings of fact and legal reasoning will be made by the Hearing Officer. This is a legally enforceable document that sets forth the legal obligations of both parties.

Many states require Early Intervention Hearings to be resolved quickly. For example, in Pennsylvania and New Jersey, the Hearing Officer must make a determination no later than 30 calendar days after receiving the request for a hearing. This time frame is shorter than the one for older children, reflecting the importance of early intervention for children with developmental delays.

Pendency: Once a hearing has been filed, and unless the parties agree otherwise, the school district must honor the last agreed upon program and placement. This is referred to as "pendency" or "stay put."

Appeals: Either party can appeal the Hearing Officer's decision. Each state determines where the appeal is heard and how quickly. At any point during the Due Process proceedings, the parties can agree to settle the dispute under mutually agreeable terms.

Attorney's Fees: Reimbursement of attorney's fees may be available to parents in certain situations. Similarly, parents and their attorney may be responsible for the attorney's fees of the EI agency if a court finds that the parents' complaint was frivolous, unreasonable, or without foundation.

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