The Due Process Hearing, in Detail

So–we’ve arrived at the due process hearing, a longstanding option within IDEA for resolving disputes between parents and school systems. The two parties may have reached this point after unsuccessfully trying another of IDEA’s options for dispute resolution, or they may have waived those options and gone straight to the due process hearing. Regardless, the clock is now ticking on the timeline for holding a due process hearing and resolving their dispute. Let’s see what that involves.
____________________

Quick-Jump Links

How due process systems are organized How IDEA’s provisions are organized Quick description of the due process hearing Each party’s rights during the hearing Burden of proof Hearing officers’ qualifications How the hearing officer decides

Timelines Appealing the decision  Timelines for SEA review Can the SEA’s decision be appealed? Bringing a civil action May parents represent themselves? May non-attorneys help parents and recover fees?

To read IDEA’s exact words, visit IDEA’s Regulations on the Due Process Hearing.

______________________________

How States Organize Their Due Process Systems

Before launching into a close look at the due process hearing, it’s helpful to know that states organize their due process systems in two different ways:

• one-tier, or
• two-tier.

In a one-tier system, the SEA or another state-level agency is responsible for conducting due process hearings, and an appeal from a due process hearing decision goes directly to court.

In a two-tier due process system, the school district is responsible for conducting due process hearings, and an appeal from a due process hearing is to a state-level review hearing before appealing to court.

 There are differences in the timelines for issuing decisions and rights of appeal for each of these systems.

Some stats on tiered systems | According to the findings of the Study of State and Local Implementation and Impact of the Individuals with Disabilities Education Act (SLIIDEA):

• 57% of the nation’s school districts use a one-tiered system (hearings held only at the state level),
• 43% use the two-tiered (hearings at the local level, with right to appeal to state-level hearing officer or panel). (O’Reilly, 2003)

The public agency’s procedural safeguards notice will provide information about the type of due process system used in the state. The notice should identify the agency that is responsible for conducting hearings (e.g., the school district, the SEA, or another state-level agency or entity).

Organization of IDEA’s Due Process Provisions

IDEA’s due process provisions are as follows:

• Impartial due process hearing (§300.511);
• Hearing rights (§300.512);
• Hearing decisions (§300.513);
• Finality of decision, appeal, and impartial review (§300.514); and
• Timelines and convenience of hearings and reviews (§300.515).

All of these provisions are available in IDEA’s Regulations on the Due Process Hearing.

What’s a due process hearing, and what happens there?

There are times when the disputing parties have been unable or unwilling to resolve the conflict themselves, and so they proceed to a due process hearing. There, an impartial, trained hearing officer hears the evidence and  issues a hearing decision.

During a due process hearing, each party has the opportunity to present their views in a formal legal setting, using witnesses, testimony, documents, and legal arguments that each believes is important for the hearing officer to consider in order to decide the issues in the hearing. Since the due process hearing is a legal proceeding, a party will often choose to be represented by an attorney.

Important point: The party requesting the hearing can only raise the issues included in the due process complaint filed under §300.508(b), unless the other party agrees otherwise. [§300.511(d)]

What rights does each party have in a due process hearing?

IDEA gives the disputing parties specific rights in a due process hearing. These rights are found at §300.512 and include the right to:

Be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities, except that whether parties have the right to be represented by non-attorneys at due process hearings is determined under State law.

Present evidence and confront, cross-examine, and compel the attendance of witnesses.

Stop any evidence from being introduced at the hearing that has not been disclosed to that party at least five business days before the hearing.

Get a written (or, at the option of the parents, electronic) verbatim record of the hearing.

Get a written (or, at the option of the parents, electronic) findings of fact and decisions. [§300.512(a)]

Disclosure | At least five business days before a hearing conducted under §300.511(a), each party must disclose to all other parties all evaluations completed by that date and recommendations based on the offering party’s evaluations that the party intends to use at the hearing [§300.512(b)]. The hearing officer may prevent any party that fails to comply with this requirement from introducing the relevant evaluation or recommendation at the hearing without the consent of the other party.

 Additional parent rights | IDEA gives parents additional rights in due process hearings. As identified at §300.512(c), these are the right to:

• have the child who is the subject of the hearing present,
• open the hearing to the public, and
• have the record of the hearing, and the findings of fact and decisions, provided to them at no cost. §300.512(c)

Who has the burden of proof in an IDEA due process hearing?

Burden of proof, as a legal term, refers to “the duty to prove disputed facts” (Harnett County, n.d.). In criminal cases, the burden of proof always rests on the prosecutors. In civil cases, the burden usually is carried by the party filing the complaint or bringing the action. In due process hearings, which party has the burden of proof (the parent or the public agency) varies from state to state and even, sometimes, within a state (Kerr, 2000). Thus, individuals involved in a due process hearing will need to find out how their state or locale addresses the question of burden of proof.

The question of which party has the burden of proof in an IDEA due process hearing—the parent or public agency—was addressed in the Supreme Court case Shaffer v. Weast (2005). While the IDEA is silent on the issue of burden of proof, the Supreme Court has held that, unless state law assigns the burden of proof differently, in general, the party who requests the hearing will have the burden of proving their case.

What qualifications must a hearing officer have?

The hearing officer has an important role as the individual who presides over a due process hearing. Not surprisingly, IDEA spells out a set of minimum qualifications that hearing officers must have. As listed at §300.511(c), this includes the following points.

The hearing officer must not be an employee of the SEA or the LEA involved in the education or care of the child.

The hearing officer must not have a personal or professional interest that conflicts with his or her objectivity in the hearing.

 The hearing officer must have knowledge of, and the ability to understand, IDEA’s provisions, federal and state regulations pertaining to IDEA, and legal interpretations of IDEA made by federal and state courts.

The hearing officer must have the knowledge and ability to conduct hearings in keeping with appropriate, standard legal practice.

The hearing officer must have the knowledge and ability to render and write decisions in keeping with appropriate, standard legal practice.

IDEA is also very clear that a person who otherwise qualifies to conduct a due process hearing is not an employee of the public agency solely because he or she is paid by the agency to serve as a hearing officer.  Moreover, each public agency must keep a list of people who serve as hearing officers. The list must include a statement of the qualifications of each of these people.  [300.511(c)]

What is the standard for the hearing officer’s decision?

It’s the hearing officer’s job to weigh the merits of each party’s argument, evidence, and witnesses, in light of what IDEA and state law require, also bearing in mind relevant federal and state regulations pertaining to the Act and legal interpretations of the Act by federal and state courts. The hearing officer must possess the knowledge and ability to conduct hearings in accordance with appropriate, standard legal practice. How does the hearing officer do this?

The regulations set forth the standard that must be applied when a hearing officer is deciding whether a child received FAPE. These requirements are found at §300.513(a) and read:

§300.513 Hearing decisions.

(a) Decision of hearing officer on the provision of FAPE.  (1) Subject to paragraph (a)(2) of this section, a hearing officer’s determination of whether a child received FAPE must be based on substantive grounds.

(2) In matters alleging a procedural violation, a hearing officer may find that a child did not receive a FAPE only if the procedural inadequacies—

(i) Impeded the child’s right to a FAPE;

(ii) Significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to the parent’s child; or

(iii) Caused a deprivation of educational benefit.

(3) Nothing in paragraph (a) of this section shall be construed to preclude a hearing officer from ordering an LEA to comply with procedural requirements under §§300.500 through 300.536.[§300.513(a)]

It’s interesting that IDEA’s provisions reference two contrasting words:  substantive and procedural. A hearing officer’s decision on whether a child received FAPE must be made on “substantive grounds.” But due process hearings are also requested because of alleged procedural violations. IDEA and the final Part B regulations are very specific about when a hearing officer can find that there is a denial of FAPE as the result of an alleged procedural violation.

The essence of the contrast between substantive and procedural is well captured in the following explanation:

Substantive law consists of written statutory rules passed by legislature that govern how people behave. These rules, or laws, define crimes and set forth punishment.

Procedural law governs the mechanics of how a legal case flows, including steps to process a case. Procedural law adheres to due process, which is a right granted to U.S. citizens by the 14th Amendment. (Kadian-Baumeyer, n.d.)

So, under what circumstances would “procedural inadequacies” be sufficient for a hearing officer to find that a child did not receive FAPE?

 According to IDEA, a hearing officer may so find when those procedural violations:

• impeded the child’s right to FAPE;
• significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of FAPE to the parent’s child; or
• caused a deprivation of educational benefit. [§300.513(a)(2)]

What is the timeline for issuing the hearing decision?

Regardless of whether a state has a one- or two-tier system for handling due process hearings, the SEA or the public agency directly responsible for the child’s education (whichever agency is responsible for conducting the hearing in your state) must ensure that a final decision is reached in the hearing  not later than 45 days after the 30-day resolution period expires (or any of the adjustments made to that period that were discussed in the separate article on Resolution Meetings).

IDEA also states that:

A copy of the hearing officer’s decision must be mailed to each of the parties within the 45-day timeline, unless the hearing officer grants a specific extension of this timeline at the request of either party.

 If the hearing officer’s decision is not appealed, it is final.

The school system must implement the hearing decision as soon as possible and, in any event, within a reasonable period of time. If it fails to do so, parents may seek court enforcement of an administrative decision. Parents may also file a state complaint with the SEA.

After personally identifiable information is deleted, due process hearing findings and decisions must be made available to the public. Many states have this information available in searchable online databases.

Findings and decisions in due process hearings, with the deletion of personally identifiable information, must also be transmitted to the state advisory panel established under §300.167.

Can the hearing officer’s decision be appealed?

Yes, it can be. But, as stated above, if it’s not appealed, the decision made by the hearing officer is final.

The specific actions required to appeal the hearing officer’s decision depend on what type of due process system (one-tier or two-tier) an SEA has, as described below.

Appealing in a one-tier system | In states using a one-tier system for due process hearings, the SEA is the entity that conducted the initial due process hearing and issued the decision. This means that, in a one-tier system, a state-level review of a hearing decision is not available. If one of the parties disagrees with the decision, the only “appeal” will be for the party to bring a civil action in an appropriate state or federal court. This will be discussed more fully after we take a look at appealing in a two-tier system.

Appealing in a two-tier system |  In states that have a two-tier system, a state-level appeal to the SEA is available. This is because the initial due process hearing was conducted by the public agency directly responsible for the child’s education, so appeal to the SEA exists as an option. This is a longstanding provision of IDEA.

In such cases, the SEA must conduct an impartial review of the findings and decision in the hearing, as specified at §300.514(b). According to these provisions, the review conducted by the SEA:

• is based on examining the entire hearing record;
• must ensure that the procedures used in the original due process hearing were consistent with due process requirements; and
• may involve the SEA asking for additional evidence, if necessary, and holding a hearing to receive it.

If a hearing is held to receive additional evidence, the rights in §300.512 apply. These were discussed earlier and include the right to be accompanied and advised by counsel; the right to confront, cross-examine, and compel the attendance of witnesses; and so on.

IDEA uses slightly different language in referring to where and when hearings and reviews that involve oral arguments must be conducted. With respect to scheduling IEP meetings, the phrase IDEA uses is “mutually agreed on time and place.” The phrase IDEA uses with respect to scheduling hearings and reviews involving oral arguments is “reasonably convenient to the parents and child involved” [§300.515(d].

Why the difference? Why is there no requirement that the parties mutually agree to the hearing time and place?

In the Analysis of Comments and Changes, the Department responded to a public comment seeking clarification about the standard for determining the time and place for conducting hearings, stating:

 The Department believes that every effort should be made to schedule hearings at times and locations that are convenient for the parties involved. However, given the multiple individuals that may be involved in a hearing, it is likely that hearings would be delayed for long periods of time if the times and locations must be ‘‘mutually convenient’’ for all parties involved. (71 Fed. Reg. 46707)

Okay, then, all the evidence is in. What happens next? As might be expected, the reviewing official must make an independent decision and issue findings of fact and decisions, providing a copy to both parties. Under §300.512(c)(3), the parent has the right to a copy of the findings of fact and decision on appeal in written or electronic form, at the parent’s option, at no cost.

Are there timelines for issuing a final decision in the review?

Yes. The SEA must ensure that, not later than 30 days after receiving a request for review, a final decision is reached in the review and a copy of the decision is mailed to the parties. This requirement is stated at §300.515(b). The 30-day timeline may be extended by the reviewing officer at the request of either party, as specified at §300.515(c).

 Can the SEA’s decision be appealed?

Suppose that one of the parties is still not satisfied with the decision? Can the SEA’s decision be appealed? Yes, by bringing a civil action.

This is the same dispute resolution process mentioned just a bit ago when we were talking about one-tier due process systems where there is no right to appeal to the SEA for any party aggrieved by the decision in the initial hearing.

Who can bring a civil action, and what’s involved?

First, let us re-state, for clarity, who may bring a civil action. Under §300.516(a), a civil action may be brought by:

• any party aggrieved by the decision in a initial due process hearing in a one-tier State (where there is no right to appeal to the SEA); and
• any party aggrieved by the decision in the SEA-level review in a two-tier State (where an appeal of the initial hearing decision can be made to the SEA).

The civil action may be brought in a State court of competent jurisdiction (a State court that has authority to hear this type of case) or in a district court of the United States without regard to the amount in controversy.

Under a new provision in the statute and regulations, there is now a timeline for filing a civil action. Under §300.516(b), in a one-tier system, the party must bring the civil action within 90 days of the date of the hearing officer’s decision (or, if the state has established a different timeframe, within the time allowed under the state’s law). In a two-tier due process system, the civil action must be brought within 90 days from the date of the state review official’s decision (or, if the state has established a different timeframe, within the time allowed under the State’s law). It’s important to note that the public agency must, through the procedural safeguards notice, notify parents of the time period to file a civil action [§300.504(c)(12)].

In any civil action, the court receives the records of the administrative proceedings and hears additional evidence at the request of either party [§300.516(c)].

 The court bases its decision on the preponderance of the evidence and grants the relief that the court determines to be appropriate [§300.516(c)(3)]. IDEA provides that the district courts of the United States have the authority to rule on actions brought under Part B of the IDEA without regard to the amount in controversy [§300.516(d)].

It’s also important to note that IDEA sets forth a “rule of construction” at §300.516(e) that pertains to civil actions. Under this rule of construction, a dissatisfied party may have remedies available under other laws that overlap with those available under the IDEA. However, in general, to obtain relief under those other laws, the dissatisfied party must first use the available administrative remedies under the IDEA (i.e., the due process complaint, resolution meeting, and impartial due process hearing procedures) before going directly into court (U.S. Department of Education, 2009, pp. 34-35).

Do parents have the right to represent themselves in an IDEA case in federal court?

Yes. Generally, federal law allows any person to represent themselves in federal court to protect their own federal rights.   In Winkelman v. Parma City Sch. Dist. (2007), the U.S. Supreme Court held that non-lawyer parents of a child with a disability may represent themselves pro se (i.e., without an attorney) in federal court, because IDEA grants parents independent, enforceable rights that include the entitlement to a free appropriate public education (FAPE) for their child.  Because parents have these rights under IDEA, they can bring and defend IDEA claims on their own and without an attorney in federal court.

May other individuals who are not attorneys help parents in a due process hearing and recover fees for their services?

The question naturally arises as to whether parents are entitled to recover fees for expert services. The straight answer: No.

The details: The U.S. Supreme Court decided this matter in Arlington Cent. Sch. Dist. Bd. of Educ. V. Murphy (2006). In that case, the court held that section 1415(i)(3)(B) of the statute, which authorizes courts to award reasonable attorneys’ fees to parents who are prevailing parties in actions or proceedings brought under the IDEA, does not authorize recovery of fees for experts’ services.

References

Arlington Cent. Sch. Dist. Bd. Of Educ. v. Murphy, 548 U.S., 126 S.Ct. 2455 (2006). (The decision is available online at: http://www.law.cornell.edu/supct/html/05-18.ZO.html)

Harnett County, North Carolina. (n.d.) Legal glossary: A guide to commonly used legal terms. Retrieved on November 29, 2017, at http://www.harnett.org/clerk/legal-glossary.asp

Kadian-Baumeyer, K. (n.d.). Substantive law vs. procedural law: Definitions and differences (Chapter 4, Lesson 3). Retrieved November 29, 2017 from the Study.com website:
http://study.com/academy/lesson/substantive-law-vs-procedural-law-definitions-and-differences.html

Kerr, S. (2000, September). Special education due process hearings. Retrieved November 29, 2017, at www.harborhouselaw.com/articles/dp.kerr.htm

O’Reilly, F. (2003, April). Dispute resolution: Year 1 survey findings and Year 1 and 2 focus study findings. Paper presented at the annual meeting of the IDEA Part B Data Managers, Arlington, Virginia.

Shaffer v. Weast, 546 U.S. 49 (2005). (The decision is available online at: http://www.law.cornell.edu/supct/html/04-698.ZO.html)

U.S. Department of Education. (2009, June). Model form: Procedural safeguards notice. Washington, DC: Author. (Quote from pp. 34-35. Available online at: http://idea.ed.gov/download/modelform_Procedural_Safeguards_June_2009.pdf)