Due Process In Special Education
Do-It-Yourself Due ProcessIf you desire to do your own special education due process hearing, you may want to order the e-book "Do-It-Yourself Special Education Due Process: An Educational Guide". It is available at www.learningenabledpublications.com.
Due Process: How It Works
Due Process – What's the order of events?
What happens during a prehearing conference?
The prehearing conference is a conference call that includes all the parties involved in the due process matter. This includes the parent(s), school’s representative(s), school’s attorney, your own attorney and the independent hearing officer (IHO).
The IHO is in charge of the conduct of the prehearing conference, which is almost always tape recorded.
Purposes of the Prehearing Conference
Can the parents speak during the prehearing?
Yes, in fact, I would encourage you to jump in and answer questions that you would more readily know the answers to off the top of your head. For example, if the hearing officer asks the age of your child, you’ll be able to answer that question more quickly than I will.
Certainly if you hear something that you believe is a misstatement or something that needs to be clarified, you can feel free to jump in and correct the statement.
EVERYTHING YOU EVER WANTED TO KNOW ABOUT MEDIATION BUT WERE AFRAID TO ASK
Going into a special education case mediation, the list of “Proposed Remedies” from your due process hearing request letter is typically the starting position for the day.
You then allow the school to respond to your list of demand as far as the things that they are willing to do and what their counteroffer will be.
Typically, the mediator starts us all out in the same room, to give his or her spiel about how mediation works.
The types of things that the mediator will explain about the process:
After the mediator gives the opening ground rules talk, he or she will put the school in one room and us in another and will shuttle back and forth between the two rooms. During a mediation, you will have a lot of down time. So, bring something to read or a laptop to check email or whatever. Otherwise, you will get bored because we likely will be there all day. Seven or eight hours is typical. I think my record mediation so far is 12 hours. Short mediations are typically unsuccessful mediations – meaning impasse is reached quickly, and the decision to end the session comes quickly because of that.
During the mediation, since it is not a formal proceeding, when we give information to the mediator, it’s more an informal discussion than a formal speech. Either the parent or the attorney can talk, ask questions, etc.
You'll like the process. It probably will be the most friendly interaction you've had with the school.
Usually for my clients, I will want to meet with you about an hour prior to the mediation to go over our list of demands, answer any questions you might have, answer any questions I might have, etc., before we head to the mediation site.
The wonderful thing about a mediation is that 90 percent of the time they are successful. That’s good because in a mediation YOU get to craft the result instead of relying on the hearing officer, who is someone who doesn’t really know you or your child, to come up with solutions to the often complicated problems that drove you to file for due process.
This brings to mind a story. There was a judge presiding over a particularly contentious child custody situation where the parents couldn’t reach an agreement, and he turned to the father and said, “Do you love your child?” He said, “Yes. I do. Very much.”
Then he turned to the mother and said, “And what about you? Do you love your child?” She said, “Of course, I do!”
He then said, “Well, I don’t love your child. So, why is it that I’m the one making all these decisions for your child?”
Anyway, in reaching a deal with the school in a mediation, we know what we’re getting and we’ve had a hand in crafting it, which is almost always better than throwing it all to chance.
An additional advantage of a mediation is that you can ask for and get things sometimes that no hearing officer would ever order. As long as the other side agrees, pretty much anything is a possibility.
The mark of a “good agreement” in a mediation is genuine give and some take on both sides and perhaps feeling like you might have gotten a little bit more if you had pushed a bit more but feeling relieved that it’s over.
Not All State Mediation Systems are Created Equal
In Texas, most of the mediators are also special education hearing officers and all are attorneys. This is especially helpful because the language and terminology inherent in special education matters can be a stumbling block for someone not familiar with them. The mediation process in special education cases in Texas is a very good system, and I highly recommend it for clients going through the special education system when differences arise between them and the school districts.
In Indiana, by contrast, neither parents nor school districts have found the mediation system to be all that beneficial, as evidenced by the fact that schools and parents actually prefer to hire and pay for private mediators, rather than using the no-cost DOE mediators. This has been going on for several years.
When folks would rather pay out of pocket for a mediator than use the existing system, which would provide a no-cost mediator, this is a sign of a broken system. However, this has been the case for many years, and no changes were made to Indiana’s special education mediation system, even though numerous changes to Indiana’s Article 7 special education rules were put into place in 2008.
Perhaps some day Indiana will fix its broken mediation system, benefiting both schools and families.
If you disagree with the IEP that your school is proposing, these are your options:
Overview for Attorneys
Special Education Law Primer
Children with special needs who qualify for special education services at school are protected by a variety of federal and state laws, including Indiana's 511 IAC 7 et seq. ("Article 7"), which mirrors the federal the Individuals with Disabilities Improvement Act (IDEA) and several other laws, including the Americans with Disabilities Act, No Child Left Behind Act and Section 504 of the Rehabilitation Act of 1973.
The parents of special needs children are the enforcement mechanisms for these laws by bringing actions against the schools, interlocals and co-ops. However, unfortunately, there is a shortage of attorneys who represent families of the currently existing 170,754 special needs children in the state of Indiana, so the purpose of this article is to give general information to attorneys about the basics of the laws protecting special needs children.
Generally, the school is charged with providing an individualized education for a child with special needs. This means that the child’s unique needs are supposed to be taken into account when the school and parents devise the child’s IEP (a multi-page document detailing what the plans are for the child’s education, such as the placement and services that the child will be provided).
The IEP is to be written in order to be “appropriate” for the child’s needs and confer “meaningful” educational benefit to the child in the “least-restrictive environment.”
What constitutes meaningful benefit, what is appropriate for the child and what is the “least-restrictive environment” is subject to debate in every case, given that the law doesn’t define any of those words.
Recipe for impasse
The law doesn’t provide for the allocation of the very best possible educational services, only an appropriate IEP designed to confer meaningful educational benefit.
What happens in many of these cases is that the parents and school often disagree about what’s appropriate because parents generally want more or better for their children than the school is able or willing to provide, primarily because of limited resources, lack of sufficient staff and lack of staff training.
How disputes are resolved
When the school and parents reach an impasse as to what constitutes an appropriate education plan for the child, there are three mechanisms to resolve these differences.
They are: complaint investigation, mediation and due process.
With a complaint investigation, an individual employed by the Indiana Department of Education would interview the parents and the school about what happened (or not), gather documents and issue a decision and corrective action, if the law was violated. This process costs parents nothing. Results of complaint investigations are posted at http://ideanet.doe.state.in.us/exceptional/speced/complaint_investigations.
With a mediation, the Indiana DOE would choose a mediator for the process, and it works much like mediation in other areas of law, though attorneys on both sides are strongly discouraged from attending these special education mediations. The school would pick up the cost of the mediator’s fee.
With due process, an independent hearing officer is assigned from a rotating list kept by the Indiana DOE. This individual would conduct an administrative hearing and issue a decision on whether the child’s substantive or procedural due process rights in Article 7 and the IDEA have been violated.
Indiana’s special education law mirrors the IDEA, though there are a few minor differences. The cost of the hearing is borne by the school, including the transcript, hearing officer’s fees (although Indiana’s DOE states strongly on its website and if you should inquire, that the hearing officers, although they are paid by the schools, are NOT employees of the school), their own attorney, and if the parent prevails, the school picks up the attorney costs for the parent.
This attorney fee shifting occurs because these due process cases are seen as civil rights matters, and payment of the attorney fees for parents is provided in both the IDEA and Article 7.
The federal and state laws provide that the family can have a decision in hand within 45 days of their request for hearing being submitted to the Indiana Department of Education. However, as a practical matter, more often than not, the process takes two to three months to get the decision in hand because it requires the coordination of the schedules of two attorneys and a hearing officer, with the average hearing lasting three days.
The IHOs in Indiana are well-versed in special education laws and various areas of disabilities. They include private practitioners with special interests in this area of law and psychology professors at various Indiana colleges and universities. Most have been serving as hearing officers for a number of years, though a new crop of four hearing officers is currently being trained by the Indiana DOE.
After the IHO renders a decision, either party may appeal that decision to the Board of Special Education Appeals (BSEA) within 30 days, unless a request for an extension of time is granted. Then the opposing party has 10 days to respond, unless an extension is granted. BSEA decisions are posted online at http://ideanet.doe.state.in.us/legal/appeals.html.
Hot topics in special education law
There are a variety of reasons that schools and parents reach an impasse about what constitutes an appropriate IEP for the child. Common areas of dispute are:
Parents of children with autism want schools to utilize a type of therapy with the children that has proven scientifically to enable a high number of children with autism to eventually be placed in the mainstream classroom. However, this therapy (usually called Applied Behavior Analysis, Applied Verbal Behavior therapy or discreet trial training) is quite expensive to implement because it requires the use of one-on-one assistance for the child. Schools simply haven’t been given the funds or training to provide this one on one therapy, so they don’t offer this option to parents, creating a recipe for impasse.
If a child has behaviors that impede his learning or the learning of others, then the school would need to conduct a functional behavior assessment (FBA) that takes a data intensive view of what leads up to the behavior (antecedent), what the behavior is and what the consequences are. Then after the FBA is conducted, a Behavior Intervention Plan is written up and incorporated into the child’s IEP. This BIP is designed to help teachers appropriately handle any misbehaviors of the child and keep things on track.
For example, in one recent case, a child with autism, when given something particularly challenging for him, would bang his head on the table as an avoidance tactic because when he would do that, the teacher would stop what she was doing and comfort him. Although this might be a natural reaction for the teacher, that type of reaction reinforced the head banging for the child and increased the likelihood he would keep doing it. The goal of a well-designed BIP is to extinguish these types of behaviors and replace them with appropriate behaviors.
Children with dyslexia learn to read differently from their peers and often require different methods and some more intensive assistance in learning to read than the schools are able and willing to provide. In Indiana, even though dyslexia is specifically named in Article 7, children with dyslexia are lumped into the much larger learning disability category, with a variety of other disorders. Schools often are reluctant to put in writing that a child even has dyslexia and instead will categorize the child as having a learning disability. This troubles parents, who want to call a spade a spade and who want early intensive programs designed to remediate the child’s dyslexia.
Removal of a special needs child from school for misbehavior is a different proposition than for a regular education child.
A student with a disability may be suspended for up to 10 consecutive school days for misconduct. The school doesn’t have to provide any educational services during the first 10 days of suspension in a school year. The school may suspend a student for up to 10 consecutive school days for each separate incident of misconduct. However, when the number of days of suspension in a school year reaches the 11th day, the school must provide educational services to the student and must convene a case conference committee meeting within 10 busienss days of the 11th day of suspension to develop a plan for an assessment of the students behavior and review and/or revise the students exhisting behavior plan.
A student with a disability maybe expelled. However, before an expulsion can occur, the school must notify the parent of the decision on the day the decision is made, provide the parents with a copy of their notice of rights, convent a case conference committee within 10 school days of the decision to expel the student and conduct a manifestation determination.
This determination means the committee looks at whether the behavior was caused by the child’s disability or whether it was a willful choice not caused by the disability.
If the behavior was caused by the child’s disability, then that cannot serve as a basis for expulsion.
If the behavior was not caused by the child’s disability, then the child may be expelled, but educational services must be provided to the child so that he or she can continue to make educational progress.
However, parents who disagree with this decision can request an expedited due process hearing.
Finally, a child who has not yet been identified by the school as having a disability but who is being suspended for more than 10 days or expelled can invoke the protections of the IDEA and Article 7 if the school knew or should have known that the child had a disability but failed to evaluate the child and failed to provide appropriate educational services.
Although this article is an oversimplification of this fascinating area of law, the hope is that this information will be useful to other practitioners who receive calls from parents, asking what their legal rights are.
It is often difficult for parents to remember and to clarify what issues have been discussed, resolved and solved or not solved during IEP meetings.
While parents may tape IEP meetings in some districts, parents may find that it is also helpful to keep a chart of what happened. Here is a chart that Kerr Law Office has found useful for that purpose.
Directions for use of chart: Write down the concerns you have in the far left hand column and your proposed solutions. Take the chart to the meeting. If you want, you can hand it out. But, you don't have to. During the meeting, ask that the school address each of your items. If the school won't address the item, write that down under the column of the school's response. If the school addresses the item but is hesitant to give you an answer, tell the school you will assume the answer is no because they haven't said yes. If the school says that is not the answer, offer to have a school person write in the school's response.
Should the school not want to do that, write in no.
Remember that the hope is to get to "resolved." If any item is reached as resolved, write it down and have somebody from the school initial the response so that there aren't disputes later. At the end of the meeting, go through your list and the school's response to be sure you did not misunderstand something.
Keep a copy of this list in your home file.
|Name of Child||Date of Meeting:|
|Parent's Issue/Solution||School's Response||Resolved?|
|Joe needs more OT time to help him write; parents suggest 30 minutes a day.||Okay; 30 minutes a week.||No|
|Sally needs to improve her reading. Parents suggest 1 hour a day of 1:1 Orton-Gillingham services||No|
|Jeremy needs to increase his social skills; parents would like less time in special education and more time in mainstream.||No (non response)|
Greetings. The tips below are designed to help you with your resolution session in your IDEIA/Article 7 due process case.
Why do we go to a resolution session?
The resolution session is the IDEiA’s attempt to try to get the parties to resolve their differences short of hearing, which is almost always a good thing.
Even if you end up NOT resolving matters in the resolution session, it’s a way for you to show the hearing officer that you are willing to make a good-faith effort to try to resolve your case.
Even though there are several reasons that make it less likely that the issues can be resolved at a resolution session (including the fact that the emotions are still raw on both sides that close to the time the hearing is requested and also that the same exact parties usually have already met several times in the past without resolving the matters), it is still worth it to try to agree early on.
Do the attorneys normally attend the resolution session?
No. In fact, the IDEIA specifically discourages the attendance of counsel for either side. If the parents insist on having their counsel there, then the school has the right to have counsel there. However, the opposite is not true. The school cannot have their attorney there without the parent’s attorney also there.
Further, the IDEIA says that attorney fees are not available for attorneys to attend the resolution session, meaning if you want your attorney there, you have to pay that cost out of pocket, which can be pricey if you include the drive time, mileage and time at the resolution session itself.
Who will be there?
Usually, the attendees of a resolution session are the parents, the school’s special education director and the cooperative’s director (if you have a cooperative). Because it is not a case conference, the full complement of people need not be there.
What’s the first thing we should do after the resolution session starts?
Handwrite on a piece of paper the following:
"I agree that the purpose of this meeting today on _____________ (date) is a “resolution session” as required by the IDEIA and that this is not a case conference. I agree that nothing that is said today will be presented in any due process hearing, either in written documents or in testimony. I understand that the purpose of today’s meeting is not to rewrite the student’s IEP."
Then collect the signatures of everyone at the resolution session, including yourselves and mail this document to me, keeping a photocopy of it for your records.
Can I leave any time I want?
Yes. Although you must make a good-faith effort to participate in the session, there is no requirement in the law that you must stay until the school says it’s OK to go. They are not in charge of the resolution session. You are an equal participant and have as much right to say it’s over as the school employees do. Nor is there a requirement in the law that everyone must stay for a certain period of time.
If during the resolution session, you feel you are being badgered or abused or you feel that the discussions in the resolution session are not moving you closer to resolving all of the issues in your case, then you can leave. In fact, some families choose to leave if the school folks won’t sign the agreement to have the “resolution session” talks be considered confidential.
Since the purpose of the resolution session is to come to a resolution, please ask the school to respond to our “Proposed Resolutions” in our letter requesting hearing. If they are not willing to discuss those items, then it’s likely your meeting is not going to be productive and will be a waste of everyone’s time.
Keep in mind that even if you do not settle the case in the resolution session, I will work diligently to try to settle the case with the school’s attorney, which is, in my opinion, much more likely to result in a settlement than is a sit-down session with the same folks who you couldn’t agree with in prior case conferences.
Should we sign a partial settlement agreement at the resolution session?
I would advise against that because that puts you in a worse position if we do go to a hearing. School often try to resolve the really bad stuff that they did wrong and then not agree to resolve some of the other stuff (usually the weaker issues for us in the case). They do this to put themselves in a better position to win the hearing, basically leaving the stuff that they're willing to take their chances on while cleaning up the bad stuff. Therefore, it’s best to agree fully on all issues or on none of them.
In a hearing situation, you must prevail in order to get the school to pay your attorney fees. If the school is able to eliminate the worst violations but not resolve all of the problems, that lessens the chance that you will prevail and get your attorney fees paid.
Should we ask for the school to pay our attorney fees at the resolution session?
Yes. Unless you are fabulously wealthy and have money to burn, you should insist on an agreement for them to pay your attorney fees for you.
If you sign an agreement that does not include the fees, then you are stuck with paying for them yourself.
Is it likely we’ll resolve the case at the resolution session?
I don’t believe it’s likely that you’ll settle there because it’s too soon after the hearing was requested. You’re ticked off, or you wouldn’t have filed, and the school is ticked off that you filed for a hearing against them. Also, you’ve already been meeting with these folks in case conferences recently and weren’t able to get things resolved there. It’s not impossible that you’ll resolve things in the resolution session. I just believe the chances are low because of the factors described above.
Is the resolution session our “last chance” to resolve the case before a hearing?
No. Definitely not. The school’s attorney and I will work to try to resolve the case via letter-writing and phone calls back and forth. That’s the mechanism that resolves most special education cases, rather than mediations or resolution sessions.
The fact that you do not resolve it in your resolution session will have no bearing on whether we’re able to settle the case without having to go to hearing.
If we DO go to hearing, what’s the timeline?
Although the due process hearing is to be completed within forty-five (45) calendar days, the times line does not begin until the earliest of the following:
– The written decision of the parent and public agency to forgo the Resolution Session;
– The decision of the parent and public agency to request mediation;
– The passage of thirty (30) calendar days from the public agency’s receipt of the hearing request with no written agreement achieved through the Resolution Process. (So, see date of hearing request, add 30 days from receipt of that, plus 45 calendar days for completion of hearing.)
Texas Hearing Decisions
Here you can read copies of prior Texas hearing officer decisions.
By contrast, Indiana Hearing Officer decisions are not available online. However, they are accessible via a Public Records Access Request.
Michigan Hearing Decisions
- 16-000898 -- Warren Consolidated -- Saunders
- 16-008381 -- Northport -- Saunders
- 16-008382 -- Walled Lake -- Robbins
- 16-020609 -- Walled Lake -- Robbins
- 16-022024 -- Walled Lake -- Robbins
- 17-003463 -- Battle Creek -- Robbins
- 17-004625 -- Carmen Ainsworth & Gennessee -- Robbins
- 17-009001 -- Whitehall -- Saunders
- 17-019001 -- Romulus -- St. John
- 17-023095 -- Kalamazoo -- Robbins
- 18-000201 -- Sturgis -- Robbins
- 18-000553 -- Southfield -- Robbins
- 18-002551 -- Detroit Public -- Robbins
- 18-003361 -- Fowlerville -- Robbins
- 18-003814 -- Romulus -- St. John
- 18-005075 -- Saginaw -- Robbins
- 18-005579 -- Livonia -- Robbins
- 18-011357 -- River Valley -- Feldman
- 18-012122 -- Fenton -- Robbins -- Parent win school for deaf
- 18-018939 -- Monroe County -- St. John -- district win
- 18-019951 -- Van Buren -- Feldman -- district win
- 18-023634 -- Traverse City -- St. John -- district IEE win
How Michigan special education disputes are resolved
When the school and parents reach an impasse in the IEP team process as to what constitutes an appropriate education plan for the child, there are several mechanisms available to help resolve these differences. They are complaint investigation, facilitated IEP meeting, mediation and due process hearing.
With a complaint investigation, an individual employed by the Michigan Department of Education (MDE) would gather information from the person filing the complaint (usually the parents) and the school staff about what happened (or didn’t happen but should have), gather documents and issue a decision and corrective action, if the laws were violated. There is no charge for this process. Although the parent can hire an attorney to represent them in this process, no attorney is required. Information about the process to file a complaint in Michigan can be viewed at https://www.michigan.gov/mde/Services/special-education/spotlight/state-complaints-procedures-and-model-forms-and-dispute-resolution-options-documents-released
There is no cost to the parent to utilize the MDE complaint process.
With a mediation, the state assigns a mediator for the process, and it works much like mediation in other areas of law. There is no cost to the parent to utilize the MDE mediation process. If the parties instead decide to hire a private mediator, there would be a cost for the mediator’s time. Statistically, most mediations result in a settlement agreement, so mediation is a worthwhile tool in resolving special education disputes.
Due process hearing requests
With a special education due process hearing request, an independent hearing officer is assigned from a rotating list kept by the MDE. This individual would conduct an administrative hearing and issue a decision on whether the child's substantive or procedural due process rights under the state’s MARSE or the federal IDEA have been violated. There is no cost to the parents for utilizing the due process hearing system.
Parents can hire private counsel to represent them at the hearing at the parents’ own expense. However, if the parent prevails, the IDEA allows the parents to seek reimbursement for attorney fees and costs from the school district. This attorney-fee shifting occurs because special education due process cases are seen as civil rights matters, and payment of the attorney fees for parents is provided in the IDEA.
MARSE special education law mirrors the IDEA, though there are a few differences. For example, in Michigan students can be eligible for special education services through age 26, which is considerably longer than in many other states.
Federal and state laws provide that the family can have a decision in hand within 45 days of their request for hearing being submitted to the MDE. However, as a practical matter, more often than not, the process takes a few months to get the decision in hand because it usually requires the coordination of the schedules of two attorneys and a hearing officer and necessary witnesses, with the average hearing lasting three to five days.
After the hearing officer renders a decision, either party may appeal that decision to state or federal court.
You can learn more about special education due process hearings at