THE INFORMATION PROVIDED IS NOT INTENDED IN ANY WAY TO BE LEGAL ADVICE AND IS ONLY INTENDED TO BE INFORMATIVE MATERIAL FOR YOU TO DISCUSS WITH YOUR ATTORNEY. THIS INFORMATION IS NOT GUARANTEED TO BE ACCURATE. IT IS IMPORTANT THAT YOU DISCUSS ANY QUESTIONS YOU MAY HAVE WITH AN ATTORNEY LICENSED IN YOUR STATE.

A DUE PROCESS HEARING is a formal proceeding, similar to a trial, in which evidence is presented to an independent hearing officer appointed by the Department of Education. The hearing officer is asked to resolve a disagreement between a child's parents and the school regarding the child's disability, identification, evaluation, eligibility, placement, services, or reimbursement of services.

Questions and Answers About Due Process

Should I retain an attorney for a Due Process Hearing?

The answer is yes. While you can pursue a Due Process without an attorney, hiring one is a very wise decision. Special education law is a very complex field with both federal and state laws that may effect a hearing officer's decision. An attorney trained in education law can be very helpful in guiding parents through the minefield of statutes, regulations, and case law that surrounds this field. However, it is very important that the attorney that is hired is one who is trained in education law and has worked in the area of special education. We advise that you ask whomever you retain about their background and whether or not they have pursued a Due Process Hearing on behalf on parents and children in the past.

I have heard you can get attorneys fees if successful, is this true?

Under 511 IAC 7-15-6(q), a parent represented by legal counsel during the proceedings of a due process hearing, appeal or civil court action is entitled to reimbursement of legal fees if the parent ultimately prevails. When there are a number of issues in a case and the parent only prevails on a few of those issues there are situations where schools argue for a reduction in the payment of the attorney fees, given that the Plaintiffs often do not win on every single issue in litigation. However, when the school fails to give prior written notice, as required by state and federal law, they are precluded from seeking a reduction in the prevailing parents’ attorney fees by virtue of 20 USC § 1415 (i) (3) (F) and (G), which states that the attorney fees cannot be reduced where a school failed to comply with a procedural right afforded to the family pursuant to 20 U.S.C. § 1415.

How do I request a Due Process?

A Due Process request is submitted in the form of a formal letter written by either you or your attorney stating the statutes violated and the issues to which the Independent Hearing Officer will be asked to decide. This letter is sent to the Department of Education and then an Independent Hearing Officer is appointed. In Indiana he or she is appointed by the Indiana Department of Education, division of Exceptional Learners from a rotating list.

What happens after a Request is Made and the Hearing Officer is Appointed?

The hearing officer will contact the school and your attorney to set up a time for a pre-hearing conference, most often this is done in the form of a conference call. At that conference the issues are clarified and formalized and dates for discovery and the hearing are set. The conference call includes all the parties involved in the due process matter, the parent(s), school’s representative(s), school’s attorney, your own attorney and the independent hearing officer (IHO).

After the conference call both the parents and the school will prepare their case for hearing. My office will give you “homework assignments” to help me prepare your case for hearing. This is helpful to me, as no one will know your case and the facts better than you do, and it helps keep your legal fees lower.

How long does it take from the Due Process request until the Due Process Hearing?

The time line will vary depending on the situation. For instance, if your child has been expelled or their has been a change in programming without your consent, a Due Process Hearing can occur as quickly as 10 days. Normally, a Due Process Hearing will occur within 45 days of your request, unless an extension is requested by either party for a valid reason such as scheduling or witness needs.

Do we need witnesses or experts?

Absolutely. While the parents have the most in-depth knowledge of their child's case, in most situations the debate is over your child's medical, physical, psychological, and intellectual needs. For instance, if your child has a bi-polar disorder and the school is failing to provide adequate programming, a good behavior modification plan and accommodations – it is important that you have a pediatrician, psychiatrist, or other professional that is aware of your child's needs and can help advise the hearing officer as to what is needed and what is appropriate. If you have a child with autism, who is 4 or 5 year old, and you are requesting that ABA therapy be part of his or her education, it is essential to be able to have supporting experts to testify as to your child's specific and individual needs. In 90% of cases parents already have pediatricians, therapists, and other people that worked with their child. In cases concerning special education eligibility for children whom the school failed to identify, we can assist you in finding qualified evaluators and individuals who focus in working with children with your child's specific disabilities.

How far back can we go with my child's records when showing the school's history of failure ?

There is no statute of limitations per say, however most Hearing Officers usually allow 3-5 years back so that the parent can illustrate the history of the problems. For instance, if your child is now in 8 th grade without reading ability – it is helpful for the hearing officer to see that you sent letters to the school starting in 4 th grade regarding your child's failure on the ISTEP in reading and your concerns over his dyslexia.

What happens at the Due Process Hearing?

A Due Process Hearing is like a "mini-trial." Each side presents an opening statement and calls witnesses. The witnesses include school personnel, administrators, physicians or psychologists, therapists, and parents. Each side calls their own witnesses and illustrates to the hearing officer their view of the case. A Due Process Hearing can be a short one day hearing or can last as long as 2-3 weeks, depending on the complexity and number of issues.

What happens after the hearing?

At the end of the hearing, the hearing officer will state when the decision will be made and state that it will be mailed to the attorneys for both sides. Once we receive the decision we will notify you. Each party has a right to appeal the decision. Any appeal must be filed with the Board of Special Education Appeals (BSEA) within 30 days of the receipt of the decision. Either party can request an extension of time to submit their appeal (called a Petition for Review) to the BSEA. A successful appeal will have to show that the hearing officer’s decision was one of the following:

(1) Arbitrary and capricious;
(2) An abuse of discretion;
(3) Contrary to law, contrary to a constitutional right, power, privilege or immunity;
(4) In excess of the jurisdiction of the independent hearing officer;
(5) Reached in violation of an established procedure, [or]
(6) Unsupported by substantial evidence.

MEDIATION is a process in which the parties with or without their attorneys sit down with a neutral party (the mediator) to discuss the disagreements between the parents and the school regarding the child's disabilities.

Can Mediation be useful?

If you have had a good relationship with the school in the past and believe there is a chance of resolving your case with the school, I would highly encourage an attempt at mediation. The school has to pay the cost of the mediation and in some cases it may be a good way to resolve the problems. You can choose to attend the mediation with or without counsel. We are available to help you prepare for a mediation and to advise you as to whether it may or may not be an adequate solution for you.

Can I hire an attorney to attend Mediation with me?

Yes, but you may want to consider attending without an attorney. In many cases we advise clients to meet with us, to go over issues, and then to attend the mediation without counsel. We do this in an attempt to encourage an amiable relationship between two parties without any attorneys there. However, in some cases the relationship with the parents and the schools has deteriorated and in those cases we will attend and work to assist a resolution.

Is a decision made by a mediator binding?

A mediator does not make a decision; they simply "mediate" a discussion between the parties in an attempt to get the parties to make an agreement.

Can I get attorneys fees at the mediation?

It depends. If the mediation was requested with a pending Due Process Hearing set and the result is an settlement agreement between the parties than attorneys fees can be part of the agreement. If there is no request for Due Process, in most cases each party is responsible for their own attorneys fees.