Due Process Hearings in Preschool and School-Age Special Education Disputes

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 school district 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. School districts almost always have attorneys representing them in Due Process Hearings.

Due Process Complaint: The Due Process Complaint must explain why you believe your child has been denied a Free and Appropriate Public Education (FAPE). All alleged wrongdoings must have occurred within 2 years before the complaint was filed unless the education agency failed to give the parents required information or unless the education agency misrepresented information to the family. At the Due Process Hearing, only issues contained within the Due Process Complaint can be discussed.

Resolution Meeting: Within 15 days from the time a parent files a Due Process Complaint, the school district, the parents, and relevant members of the Individualized Education Program (IEP) team must hold a Resolution Meeting. The purpose of the meeting is to discuss the Due Process Complaint and to try to resolve it without a hearing. If the parents choose to attend the Resolution Meeting without an attorney, the school district cannot bring an attorney to the meeting either. The parties can agree in writing to waive the requirement of a Resolution Meeting or to pursue mediation instead. If the Resolution Meeting does result in an agreement, the agreement will be made into a written binding agreement that is enforceable in state or federal court. Parents and the school district both have three business days after signing a Resolution Agreement to void it. If a Resolution Meeting does not resolve the issue, a hearing must be held.

The Hearing Itself: At least five business days before the Due Process Hearing, each side will have to share with the other party any evidence, including evaluations and recommendations, that will be used in the hearing. An impartial Hearing Officer with knowledge of special education presides over the hearing and decides the dispute for the parties. Parents are entitled to receive a transcript of the hearing and a 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.

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 file an appeal to the Hearing Officer's decision. Either side can appeal the decision in a civil court of law by filing a civil suit within 90 days of the date of the Hearing Officer's decision. At any point during the Due Process proceedings, the parties can agree to settle the dispute under mutually agreeable terms. Agreements not reached during a Resolution Meeting may not be enforceable in federal court.

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 school district if a court finds that the parents' complaint was frivolous, unreasonable, or without foundation.

Recommended Link:

• CAR Resource Directory (Search for Advocacy)

Additional Resources:

• Due Process Complaint Notice — Preschool
• Due Process Complaint Notice – School-Age
• Due Process Hearing Timelines In PA
• Resolution Meetings: A Guide For Parents And Educators
• Pennsylvania Early Intervention Due Process Request Form
• Website For The Pennsylvania Office For Dispute Resolution
• Searchable Database Of Pennsylvania Hearing Officer Decisions
• Mock Due Process Video