Special Education Tip-of-the-Day: Overview of Due Process Hearing—Steps and Important Timelines

ACDL News, Disability Law, Education No comments

by Amanda Glass, Equal Justice Works Fellow

 

Yesterday, we introduced the special education due process system and how to file a due process complaint. Today, we will provide an overview of the due process hearing, including the steps involved and important timelines.

 

Steps in the Due Process System

Below, we outline the steps in the due process system, from filing the complaint to receiving the decision.

 

Step 1 – File a Due Process Complaint

  • For information about how to write and submit a due process complaint, take a look at yesterday’s blog post.
  • If you decide to file a due process complaint, you should file as soon as you are prepared to go to a hearing, but in no case later than two years from the date you knew or should have known about the alleged violation.

 

Step 2 – Insufficiency Objections and Amending the Due Process Complaint

  • In order to be considered “sufficient,” a due process complaint must include certain information. If it does not, the responding party has the opportunity to submit an “insufficiency objection,” which alerts the administrative law judge (ALJ) that the party does not believe that the complaint contains all of the information required by law.
  • Insufficiency objections must be filed by the responding party within 15 days of receiving the complaint.
  • The ALJ must decide whether a complaint is sufficient within 5 days of receiving the insufficiency objection and must provide its decision to both parties in writing.
  • The complaining party may be given an opportunity to amend the complaint to make it sufficient.

 

Step 3 – Response to Due Process Complaint

  • The responding party must provide a written response that specifically addresses each issue raised in the complaint within 10 days of receiving the complaint.

 

Step 4 – Resolution Session

  • After a due process complaint is filed, the parties must engage in a “resolution session” to try to resolve the issues raised in the complaint within 15 days of the responding party receiving the complaint.
  • From the time it receives the due process complaint, the responding party has up to 30 days to resolve the dispute without the need for a hearing (called the “resolution period”).

 

Step 5 – Pre-Hearing Conference

  • If the resolution period ends without a resolution being reached, the ALJ will conduct a pre-hearing conference to go over the complaint with the parties and to set the time and dates for the hearing.

 

Step 6 – Due Process Hearing

  • This is the opportunity for both parties to present evidence, question witnesses, and make arguments before an ALJ.
  • The due process hearing occurs within 45 days of the end of the resolution period.

 

Step 7 – The Decision

  • A final hearing decision must be made no more than 45 days after the resolution period ends.
  • This means that from the time the due process complaint is filed until a decision is made should be no more than 75 days, although the ALJ may grant extensions of time at the request of either party.
  • A copy of the decision must be mailed to each of the parties.
  • ALJ decisions may be appealed in state or federal court within 35 days of the ALJ’s decision.

 

Over the next six blog posts, we will break down steps 2 through 7 above, providing more details about the process, tips for preparing for each step, and links to additional resources and information.

 

Tomorrow’s Tip-of-the-Day: Due Process—Insufficiency Objections and Amending the Complaint

 

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