Special Education Tip-of-the-Day: Special Education Due Process System
by Amanda Glass, Equal Justice Works Fellow
So far, we have discussed several special education dispute resolutionmethods, includingIndependent Educational Evaluations, Facilitated IEP Meetings, Mediation, and the administrativeState Complaintsystem. The most formal of the dispute resolution options available through the Arizona Department of Education (ADE) is the Due Process system.
What Is a Special Education Due Process Hearing?
Under the IDEA, all states must develop a due process hearing system. A due process hearing is an administrative hearing that is held before an impartial hearing officer, similar to a judge. Each side has the opportunity to present evidence, cross-examine witnesses, and make legal arguments, just as they would at a trial. The hearing officer listens to the evidence and then issues a written decision.
What Types of Disputes Should Be Resolved Through a Due Process Hearing?
Due process hearings are best suited to resolve substantive disagreements, rather than procedural ones. For an explanation of the difference between substantive and procedural violations, see yesterday’s blog post on state complaints.
Substantive disputes do not have an objective answer that can be identified through a state complaint investigation. Instead, substantive disputes require that evidence from both sides be presented to a fact-finder who must make a determination. Due process hearings can be used to resolve issues regarding:
- Identification of a child with a disability;
- Evaluation of a child with a disability;
- Educational placement of a child with a disability; or
- The provision of a free appropriate public education (FAPE).
How to Submit a Due Process Complaint
In order to request a due process hearing, you must file a due process complaint. Unlike a state complaint, a due process complaint can only be filed by the parents of a student with a disability, an adult student with a disability, or the school of a student with a disability. The complaint must be written and signed by the person filing it, and should include the following information:
- The student’s name;
- The student’s address;
- The name of the student’s school;
- A description of the dispute, including facts about the dispute; and
- A proposed solution
There is no specific format required for the state complaint. Individuals looking for more guidance on how to structure their complaint can use the Model Due Process Complaint Form on the ADE website.
The party filing for due process must provide copies of the complaint to the other party and to ADE. This may be done by regular United States mail, fax, or via e-mail. When ADE receives the due process complaint, it will assign a case number and forward the due process complaint and supporting documentation to the Arizona Office of Administrative Hearings (OAH). OAH will provide ADE with hearing dates and the name of the appointed Administrative Law Judge (ALJ). In Arizona, the ALJ acts as the hearing officer.
Do I Need a Lawyer to File a Due Process Complaint?
Parents are not required to be represented by an attorney to file a due process complaint or appear at a due process hearing. However, school districts will almost always be represented by an attorney, and the law and issues in a due process case can be complicated. So, before deciding to pursue due process or submitting a due process complaint, you should try to get legal representation or legal advice.
Although some private special education attorneys charge an hourly or flat fee, others will take cases on a contingency basis. This means they will only charge you if they win your case, and their fees are usually paid by the school as part of a settlement agreement or the ALJ’s order. You may search for a private special education attorney in the directory of the Council of Parent Attorneys and Advocates (COPAA) by selecting the filters for “Arizona” and “attorney.” If you are considering filing a due process complaint, you can also call the Arizona Center for Disability Law (ACDL) or go online to complete an intake requesting legal advice in preparation for or representation at a due process hearing. Whether or not ACDL can assist you will depend, in part, on availability of staff and resources.
What Is the Deadline for Filing a Due Process Complaint?
If you decide to file a due process complaint, you should file as quickly as possible, but in no case later than two years from the date you knew or should have known about the alleged violation. There may be an exception made to this timeline if a parent’s delay in filing a due process complaint was because the school misrepresented or withheld information from a parent, but generally, a due process complaint alleging violations that occurred more than two years before the date the complaint is filed will be dismissed.
For additional information about how to craft a good due process complaint, read the Center for Parent Information and Resources article on this topic. You can also learn more from ACDL’s Special Education Self-Advocacy Guide and the Center for Appropriate Dispute Resolution in Special Education’s (CADRE’s) Due Process Parent Guide.
In our next blog post, we will go over what to expect from a due process hearing, including the possibility of early resolution, timelines, what happens at the hearing itself, and the ability to appeal a hearing officer’s decision.
Tomorrow’s Tip-of-the-Day: Due Process Hearing: What to Expect
THIS BLOG/WEB SITE IS MADE AVAILABLE BY ACDL AND ITS LEGAL STAFF FOR EDUCATIONAL PURPOSES TO GIVE YOU GENERAL INFORMATION AND A GENERAL UNDERSTANDING OF THE LAW, NOT TO PROVIDE SPECIFIC LEGAL ADVICE. BY USING THIS BLOG SITE YOU UNDERSTAND THAT THERE IS NO ATTORNEY CLIENT RELATIONSHIP BETWEEN YOU AND ACDL. THE GENERAL INFORMATION ON THE BLOG/WEBSITE SHOULD NOT BE USED AS A SUBSTITUTE FOR COMPETENT LEGAL ADVICE FROM A LICENSED PROFESSIONAL ATTORNEY IN YOUR STATE.