Question 1

What is a due process complaint?

Accepted Answer

Sometimes, a child's IEP does not provide what a child needs in school. This can happen for a lot of different reasons. Sometimes, the child's needs are out of line with what a school typically provides. Other times, the school may not fully understand how to help a child. And on some occasions, the members of the IEP team are simply not the people who can say yes.

When this happens, parents face a difficult choice to either continue to work through the IEP team or to use the dispute resolution process that the federal government has made available to parents of children with disabilities in government-funded schools. That dispute resolution option involves filing a due process complaint.

Parents may file a due process complaint when they disagree about the adequacy of some component of their child's special education plan, and when disagreements cannot be resolved at the IEP table. A due process complaint is a written complaint that describes why the parent believes their child is not being provided a Free, Appropriate Public Education and asks for remedies to fix it.

Question 2

What should I expect if I file due process?

Accepted Answer

Federal law gives very specific rules about how due process complaints work. Once a due process complaint is filed, the complaint is assigned to an impartial hearing officer, who will preside over a due process trial if the case does not settle in the resolution phase.

Under federal law, when parents file a due process case against a school district, the district must offer an opportunity to resolve the dispute in a "resolution" session. Here, the district will typically make an offer to resolve the dispute in exchange for the parents dropping the due process claim. Negotiations may continue back and forth for several rounds.

If an agreement is reached that parents are satisfied with, the parents will  withdraw their complaint after all parties sign a resolution agreement. If agreement is not reached, the case will proceed to trial, although efforts to resolve the case by negotiation may continue.

Question 3

We can't reach a resolution. What will a due process hearing be like?

Accepted Answer

A due process hearing is essentially a mini-trial, except it is in front of an impartial hearing officer instead of a judge or jury. Both sides can admit evidence and call and cross examine witnesses.

The hearing will begin with opening statements by both sides. This will be followed by witness testimony. In Nevada, the school district will typically call its witnesses first, because the district has the burden of proof. After each witness, the parents' attorney will cross examine the school district witnesses.

Once the school district has called all of its witnesses, the parents get a turn to call witnesses as well. Usually, a parent will testify, as well as any outside providers  or evaluators. Sometimes, an expert witness will be needed. Testimony should include details about the violation, as well as testimony on the appropriateness of the remedy being sought. The school district attorney may also cross examine the parents' witnesses.

Once the witness testimony is completed, the parties will each give closing statements. A typical due process trial takes about 2-4 days, although this can vary. The hearing officer will later issue a written decision about the case.

Question 4

How important is it to have an expert witness at a due process hearing?

Accepted Answer

Having expert witnesses who can support your case is very important in a due process hearing, although this does depend on the nature of the complaint. Some types of complaints can be resolved without an expert.

An expert witness is needed specifically if you need to show that the school's IEP did not offer your child a Free Appropriate Public Education. Without your own expert, you will be dependent on the testimony of school district witnesses, who will likely not back up your claims.

An expert witness is also needed to show the appropriateness of your proposed remedy. Without this, you run the risk of winning the due process claim only to be assigned a remedy that does nothing to help your child, such as more hours of the same failed educational approach.

Fortunately, there are many types of people who can serve in this role. An expert does not need to have a Ph.D. Types of witnesses that could help proving your case include independent evaluators, private tutors, and outside service providers such as BCBAs, speech pathologists, occupational therapists, etc.

Question 5

What can I do if I lose at due process?

Accepted Answer

If you lose at due process, you will need to assess the reasons why you lost prior to making a decision about how to proceed. Did the hearing officer make a legal error, or did the hearing officer make a clear mistake about the facts on the record?

If you believe the hearing officer made a significant error of law or fact, you may decide to appeal your case. Nevada is a two-tier state, meaning your case goes first to a hearing officer and then is appealed to a state review officer. The decision of a state review officer may be appealed to federal district court.

Generally speaking, the review officer will give deference to the reasoned opinions of an impartial hearing officer. So to win an appeal, the officer needs to have made a mistake in your case that would have affected the outcome. Even if the state review officer would have made a different call, the review officer will not likely reverse a decision in the absence of an actual mistake by the hearing officer.

Question 6

Should I ask for mediation to resolve my due process complaint?

Accepted Answer

Mediation is an alternative way to resolve a complaint than just having a resolution meeting with the district. That is because mediation is more structured, and the presence of a mediator can keep discussions on track.

To get to mediation, both sides must agree. A request can be submitted to the state for mediation, and the state will assign a mediator once all parties agree.

Question 7

Do I need a lawyer to file due process?

Accepted Answer

Yes. Due process is a legal proceeding that culminates in a trial. Very few parents will prevail at due process without a lawyer due to the complexity of the proceedings.

Some parents do resolve their cases prior to hearing without a lawyer. But parents who represent themselves at due process are less likely to get meaningful remedies for their children in the resolution process. A family is more likely to get a meaningful remedy when a lawyer is helping in the case.

Cost should not be a factor when hiring an attorney for due process, especially if parents have a strong claim. That is because many lawyers will take due process cases on a sort of contingency basis because of federal fee-shifting rules. Under federal law, attorney fees are reimbursable to parents when parents prevail at a due process hearing. That is because children are entitled to a FREE Appropriate Public Education. Hiring an attorney to represent you at due process is generally affordable due to these provisions.