Under the Individuals with Disabilities Education Act (IDEA), children with disabilities may be eligible for special education services that entitle the child to a “free appropriate public education” (FAPE). FAPE is provided through an Individualized Education Program (IEP).
An IEP team determines whether a child qualifies to receive special education services and what the IEP should entail. Parents are critical members of this team. In theory, the team is to collectively determine the contents of the IEP. An IEP cannot be implemented without parental consent.
Understandably, the team occasionally disagrees about specific content in the IEP. This disagreement is generally between the parents, and the district IEP members. When a stalemate occurs, and there is no chance of a consensus, it may be necessary to file a due process complaint. This leads to a due process hearing.
What is a due process hearing and how does it work?
Essentially, a due process hearing is an impartial way to determine the need for assessment, eligibility for special education services, or the appropriate educational placement, services and support that your child is entitled to under the law. It leads to a decision by an administrative judge.
Parents can think of a due process complaint like a filing a lawsuit – but if you “win” at the hearing, your receive an IEP that is designed to what you considered as “appropriate”, as well as “compensatory education” (services your child should have received, but for the district’s violations).
Instead of filing a complaint through the “regular” court system, it is filed through OAH (Office of Administrative Hearings). OAH is an independent state agency that handles special education disputes. Instead of a “trial”, due process complaints are handled through a “hearing”. Hearings are similar to trials, but are not held in a courtroom, and are slightly more informal.
Once you file a complaint, the “lawsuit” begins. Before the hearing, there are three primary events:
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Resolution Session
First, there is an early resolution session. This is an informal meeting between the two parties (parents and school district) without legal representation. The hope is that the parties come to a mutual agreement at this resolution session. For the students we represent, our office will help parents prepare for this meeting, and be available throughout the session for consultation (via telephone).
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Mediation
Second, there is a mediation. This is a more formal attempt to resolve your complaint without going to a hearing. The parties, their attorneys, and an administrative judge from OAH will attend. It is generally held at the school district’s office. It is scheduled for the entire day, although it does not take the entire day in some cases. It is considered “confidential settlement negotiations”, meaning, anything said during the mediation cannot be used as evidence in the hearing. The judge presiding over the mediation is automatically prohibited from hearing the case, to ensure that confidential settlement communication is not brought into the hearing.
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Pre-Hearing Conference
Third, there is a pre-hearing conference (PHC). This is a teleconference between the judge, who will be presiding over the hearing, and the attorneys. The purpose of the PHC is to identify the specific issues (allegations) that will be determined at the hearing, the proposed resolutions, witness lists, evidentiary issues, any pre-hearing motions, and any and all other practical matters for the hearing. For parents without an attorney, the parents will have to attend the PHC.
Lastly, if all else fails, a hearing is held. It is a “trial”, wherein the parties are allowed to present witnesses, evidence and arguments. The presiding judge makes a final, written decision.
Do I need an attorney?
Parents are not required to have an attorney. However, there are several reasons why having one is beneficial. Attorneys can handle all the “administrative” aspects of the case. In addition to the events outlined above, there are many things that need to be done before a case goes to a hearing, such as, PHC statements, exchanging of documentary evidence and witness lists, issuing subpoenas, and so on.
Attorneys also have the benefit of wide exposure to special education cases. This experience allows attorneys to better gauge the legal strength of a parent’s grievances, as well as the likely outcome. It’s fair to say that all the parents we have met are well intentioned, and want the best for their child. But in many cases, there is a significant difference between what parents want (the “best”), and what the child is entitled to under the law (a “free appropriate public education”). In other words, an attorney may be able to be a more effective advocate by eliminating any bias and emotion from your child’s complaint, and strictly focus on obtaining the service your child is entitled to under special education law.
Consequently, as another benefit, attorneys can “fine tune” your grievances from a legal perspective. It has been our experience that certain grievances parents may have are not necessarily legal violations committed by the school district. On the other hand, parents may not realize a violation has occurred, because they are not as familiar with the law.
How can Hee J. Kim Law Firm, PC, help my child?
We represent students in due process complaints and hearings. We have worked on many issues with IEPs, including, but not limited to: appropriate assessments; a student being determined to qualify for an IEP, what the LRE (least restrictive environment) is, what related and/or support services the student should receive, and whether the student should receive ESY (extended school year).
Our office is here to ensure that your child receives a FAPE and all the appropriateservices and support your child is entitled to under law.