In general, “Due Process” is a procedure set forth in IDEA by which the School District or a Parent may challenge any matter relating to a proposal or a refusal to initiate or change the identification, evaluation, or educational placement of your child or the provision of a FAPE (“Free and Appropriate Public Education”) to your child.
There are strict time limitations and procedural rules imposed by the law that must be followed by both parties to the Due Process procedure.
In order to request a hearing, a parent or the School Dstrict (or their attorneys) must submit a due process hearing request to the other party. A copy of the filing must also be provided to the Florida Department of Education.
In general (and subject to certain exceptions not set forth here), once a due process hearing request is sent to the other party, during the resolution process time period, and while waiting for the decision of any impartial due process hearing or court proceeding, unless the Parent and the SEA (State Educational Agency) or the School District agree otherwise, your child must remain in his or her current educational placement. If the due process hearing request involves an application for initial admission to public school, your child, with your consent, must be placed in the regular public school program until the completion of all such proceedings.
a. Within 15 days of receiving notice of the due process complaint, the school district must hold a resolution session with the Parents. The resolution session must include members of the IEP team who have knowledge of the facts identified in the complaint and a representative of the school district with decision making authority. The purpose of the meeting is for you to discuss your due process hearing request, and the facts that form the basis of the due process hearing request, so that the school district has the opportunity to resolve the dispute.
b. The resolution session may be waived in writing if all parties agree, or if the parties agree to proceed with ‘mediation.’
c. The school district may not have an attorney present, unless the parents are represented by an attorney.
d. If the matter is resolved at the resolution meeting, a legally binding settlement agreement will be executed; the agreement is voidable by you within 3 business days.
e. If the school district has not resolved the due process hearing request to your satisfaction within 30 calendar days of the receipt of the due process hearing request (during the time period for the resolution process), the due process hearing may occur.
Mediations are voluntary. The purpose of mediation is to encourage communication between both parties (parents and the school district). The mediator does not make any decisions, but facilitates communication and helps to settle all issues between the parties. Mediations usually occur at your local school district office. Any discussions during the mediation process are confidentialand may not be used as evidence in a later Due Process hearing or civil case. If the matter is resolved at mediation, a legally binding settlement agreement will be executed.
“DUE PROCESS HEARINGS”
Whenever a due process hearing request is filed, you or the school district involved in the dispute must have an opportunity for an impartial due process hearing. This procedure is similar to a trial, in which both parties can present evidence and ask questions of and cross-examine witnesses. There is no jury. The hearing takes place before an “Impartial Hearing Officer.” You have a right to be represented by counsel at the Due Process Hearing. After all the testimony is heard and submitted, and legal documents filed and replied to, the Impartial Hearing Officer will issue a written decision containing his/her findings of fact and conclusions of law. The decision of the Impartial Hearing Officer is final, but there is a right to appeal to State or Federal Court.
Fee Recovery By School District. Warning: As a result of a 2004 Amendment to the IDEA, if the school district is the prevailing party in the due process hearing, they may seek to recover their attorney’s fees and costs from you if they can show that your reasons for initiating the due process hearing against them were frivolous, unreasonable, or without foundation, or were for the purpose of harassment or delay or if we unreasonably protract the proceedings. It is unclear how courts will interpret or apply this new provision, but it does create a risk that parents who are unsuccessful in their due process hearing may be held responsible for the school district’s fees.
If the parent is the prevailing party, attorney’s fees may be awarded by a court of competent jurisidction.
Special education law is complex; you may have many more questions that have not been addressed here. Feel free to contact us to discuss your child’s particular situation.