Chapter 11: Dispute Resolution Options — Understanding Your Options for Settling Disputes - Página 2

Due Process Complaint (Request for Hearing)

Either the parent or the school district may request a due process hearing involving any matter relating to the identification, evaluation or educational placement of the child, or the provision of a free appropriate public education. Your state is required to have a policy on whether the due process hearing is conducted by the state education department or by the local school district.

[New] IDEA 2004 imposes a time limit for requesting a due process hearing. Now, the hearing must be requested within two years of the date the parent or school district knew or should have known about the alleged action that forms the basis of the request for the hearing. (Note: Your state may have its own timeline for filing such complaints. If so, the state time limitation for filing a due process complaint applies.)

There are two conditions in which IDEA’s new two-year time limit does not apply:

• If the school district specifically misrepresented that it had resolved the problem when it had not

• If the school district did not provide you with information that IDEA requires it provide to you.

Filing a Due Process Complaint

To request a due process hearing, you must provide the school district or its attorney and your state's department of education with a written notice that includes:

• The name of the student, the home address of the student (or available contact information in the case of a homeless student) and the name of the school the student is attending

• A full description of the nature of the problem, including any action the school district proposed or took prior to the notice and the facts about that action

• Your proposal to resolve the problem, if appropriate

Your description of the nature of the problem must include every issue that you would like to have addressed at the hearing. Unless the school district agrees, you will not be allowed to bring up any additional issues that have not been included in your complaint. However, you may file a separate request for a due process hearing on a different issue.

Examples of issues that may form the basis of a due process complaint include disagreement between the parents and school regarding:

• The eligibility for special education services

• The method used to deliver the intervention to provide the student's special education services

• The educational setting where special education services will be provided to the student

Each state department of education must have a model form to assist parents in filing a due process complaint that fulfills the requirements of IDEA. Contact your Parent Training and Information Center or state education department for more information.

What Happens Next

When the state department of education receives the due process complaint (or hearing request), it must immediately assign a hearing officer to the complaint.

Within five days of receiving your hearing request, the hearing officer will determine if your request meets IDEA's requirements for a due process hearing and will notify you in writing.

At the same time, if the school district believes that your hearing request does not meet IDEA's requirements for a due process hearing, they must notify you and the hearing officer in writing within 15 days of receiving the complaint. Likewise, if the school district initiated the due process complaint, you must notify them within 15 days if you feel the complaint does not meet IDEA's requirements.

You should also receive a response from the school district within 10 days of the time they received your hearing request, if you have not already received Prior Written Notice from the school district. The response should include:

• An explanation of why the school district proposed or refused to take the action raised in the request for a due process hearing

• A description of other options that the Individualized Education Program (IEP) team considered and the reasons why those options were rejected

• A description of each evaluation procedure, assessment, record or report the school district used as the basis for the proposed or refused action

• A description of the factors relevant to the school’s proposal or refusal.

On the other hand, if the school district filed the request for a due process hearing, you must respond to them in writing within 10 days, and your response must specifically address the issues raised.

The party (parent or school district) that requested the due process hearing may change its request only if one of the following occurs:

• The other party provides written consent and is given the opportunity to resolve the complaint through a meeting

• The hearing officer grants permission. This permission can only be granted up until five days before a due process hearing occurs.