A special education due process hearing is a dispute resolution processes available to parents when the parent and the school disagree regarding identification, evaluation, educational placement, special education services, and/or provision of a Free Appropriate Public Education to a student with a disability.
Parties.
The party filing the complaint (typically the parent) is called the petitioner and the other party (typically the school district) is called the respondent.
Timeline
A hearing officer must generally issue a decision within 45 calendar days following the 30-day resolution period. However, the parties will typically request at least one extension or modification of the hearing date(s) to accommodate the parties’ schedules and/or to allow for additional time to prepare for hearing. These requests are typically granted so long as the hearing officer determines there is “good cause” for doing so.
Expedited Hearings.
Expedited hearings must occur within 20 school days of the date the due process complaint is requested, and the hearing officer must issue a written decision within 10 school days after the hearing. The hearing officer cannot grant any time extensions in expedited hearings.
Stay Put.
Unless a request involves a disciplinary matter, the student will remain in their current educational placement through the hearing decision and any appeal of the decision. When the student’s educational placement was changed for disciplinary reasons, the student will remain in the disciplinary placement through the hearing officer’s decision or until the end of the disciplinary placement, whichever occurs first.
Burden of Proof.
The petitioner will generally have the burden of proof at hearing, which means that they have the responsibility of proving to the hearing officer that their version of the facts is true. Parents usually have the burden of proof since they are typically the petitioner.
Hearing Officer Awards.
Hearing officers may award relief to either party. Awarded relief can include:
an order for a school district to implement an educational program, conduct an evaluation, or change an educational placement;
reimbursement for private services & tuition;
additional services to compensate for services not provided;
relief pertaining to disciplinary sanctions; and/or
an order directing a school district to comply with legally required procedural requirements.
Attorneys' fees.
The parties must pay their own attorneys’ fees. Hearing officers do not have the authority to award attorneys’ fees or litigation costs to either party. However, if the hearing officer rules in favor of petitioner, the petitioner may file a claim for attorneys’ fees in federal court. Typically, when the petitioner secures a favorable ruling, the parties will negotiate and settle petitioner’s attorneys’ fees claim without the petitioner needing to file a claim in federal court.
Implementation of Hearing Officer's Decision.
When a hearing officer orders the school district to take some action, TEA will monitor the school district’s implementation of the hearing officer’s decision. A school district must implement a hearing officer’s decision within the time frame specified by the hearing officer or, if no time frame is specified, within 10 school days of the decision date. If the school district fails to fully implement the decision, the petitioner can file another request regarding the failure to implement.
Appeal.
Either party can appeal a hearing officer’s decision in federal court within 90 days.
Hearing Process.
1. Request.
The process begins when the petitioner files a request for special education due process hearing (referred to herein as the “request”). The request must include the student's name, address or contact information, the campus & school district, a description of the problem, and the related facts.
A request must be filed within 2 years of the date the party knew or should have known about the problem. There are 2 exceptions to the two-year timeline: (1) misrepresentation by school district that problem was resolved that prevented parent from requesting a due process hearing, and (2) withholding of information required by the IDEA to be provided to parent by the school.
2. Hearing Officer.
The Hearing Officer is in charge of all aspects of the due process hearing (similar to a judge for a trial). During the hearing, the hearing officer listens to the parties’ evidence & arguments and issues a written final decision & order. The TEA assigns cases to hearing officers who are private practice attorneys based on an alphabetical rotation. TEA also assigns cases to the State Office of Administrative Hearings, and SOAH then appoints a TEA-approved Administrative Law Judge to hear the case.
3. Confirmation of Request.
After receiving the request, TEA will assign the case to a hearing officer and send the parties written notice with the case docket number and the hearing officer’s name & contact information.
4. Scheduling Order.
The hearing officer will send the parties a scheduling order that includes information for the prehearing conference, hearing date(s), and a decision due date.
5. Resolution Meeting.
The school district must hold a resolution meeting meeting within 15 days after receiving notice of the request for the parties to attempt to resolve their differences before going to a hearing. For expedited hearings, the resolution meeting must occur within 7 calendar days after notice. The parties will sometimes agree to waive the resolution meeting and instead attempt to settle the case informally or through the mediation process. The resolution meeting must include the student’s parent(s), a school district person with authority to make decisions, and relevant IEP/ARD committee members. The school district cannot bring an attorney unless the parent brings an attorney. The hearing officer does not attend the resolution meeting.
Please note that discussions during a resolution meeting are not confidential, meaning either party can introduce information discussed during the resolution meeting at hearing. However, IDEA and FERPA confidentiality provisions continue to apply.
If the parties reach an agreement on some or all issues in the case, they will put the agreement in writing, and the petitioner’s attorney will ask the hearing officer to dismiss the agreed upon claims. Please note that you can – but do not have to – decide whether to agree or disagree to any terms proposed by the school district during the resolution meeting; I typically advise clients to consider asking the school district to reduce any offered terms to writing for you to take home so that you have additional time to consider the offer. If the parties do not reach an agreement, the case progresses toward hearing. Please note that the parties can informally negotiate the case (with or without utilizing the mediation process) right up to the hearing date(s).
6. Prehearing conference.
This is a telephonic hearing that generally occurs shortly after the request is filed. Generally, the hearing is attended by the hearing officer, a court reporter, attorneys for both parties, a client representation from the school district (typically the special education director), and sometimes the parent of the student at issue. The general purpose of the hearing is to discuss procedural hearing issues, including clarification of the issues set forth in the request, deadlines, hearing date(s), and clarification of discovery and hearing procedures. Your attorney will attend the hearing on your behalf; you may attend the hearing, but you are not required to do so. If you choose to attend the hearing, you will dial in by telephone. Your attorney will handle all aspects of the hearing. Because hearing officers generally prefer that only one person from each side, it is important that you listen only unless your attorney or the hearing officer asks you a question.
The prehearing conference will be transcribed by a court reporter, and each party will receive a copy of the prehearing conference transcript. After the prehearing conference, the hearing officer will send the parties an order that includes the hearing date/time/place, the issues in the case, the petitioner’s requested relief, the disclosure deadline, the decision deadline, & any other relevant information. [Disclosure is when the parties disclose their evidence and identify their witnesses to the other party and the hearing officer.]
7. Discovery.
Prior to hearing, the parties will engage in discovery, which includes sending to the other party requests for production of specific documents that are relevant to the issues. After a party sends requests for production to the other party, the receiving party generally has 30 days to respond to the requests and produce requested documents. Please note that it is a good idea to start gathering and organizing all documents you have that might be relevant to the case to ensure enough time to respond to any requests for production. Thirty days seems like a lot of time; however, there are procedural and other steps your attorney must take in responding to requests for production which can take time.
Often, there are medical records for the student that are pertinent to the issues in the case. The school will typically ask the hearing officer to approve their request for these records. So long as the records are relevant, the hearing officer will typically approve the school’s request, and the school will send their request directly to the medical provider. The medical provider is generally required to produce the requested records. We will receive copies of the records produced. Please note that it is a good idea to procure any medical records that may be requested by the school in advance so that we can review these records before the school receives them.
Sometimes – but not often in these types of cases – one or both parties will ask to take a deposition(s). A deposition is when you obtain testimony from a witness outside of the hearing to obtain information in preparation for trial.
8. Expert(s).
It is likely that we will need to retain an expert witness to testify at hearing. Expert testimony is typically essential to appropriately argue our case. The type of expert we retain depends on the facts of the case. We may ask the expert to prepare a report of their opinions, which we are required to produce to the school prior to hearing. Petitioners are responsible for paying their experts for services. The cost for an expert depends on the type of expert, their experience, and the amount of work they are asked for perform.
9. Hearing.
Hearing attendance:
Attendees include the Hearing Officer, parent(s), school district representative, court reporter, witnesses, & attorneys.
The student may attend the hearing.
The petitioner will choose whether the hearing is “open” (i.e. open to the public to watch) or “closed”(i.e. public is not permitted to attend).
Location
The hearing can either be conducted “in-person” or virtually. The parties and hearing officer generally determine this during the pre-hearing conference.
If the hearing is “in-person”, it is generally held in a room at the school district’s administrative building.
Duration and timing
Hearings are generally between 1 and 5 days, with most being 2 or 3 days in duration.
The hearing will typically begin each day between 8:30 AM and 10:00 AM depending on the hearing officer’s preference.
The hearing will typically end each day at approximately 5:00 PM but may end later depending on the hearing officer’s preference and the situation.
Sequence
On the first day of the hearing, the hearing officer will conduct “pre-trial”, which includes determining procedural matters such as pre-admission of exhibits and issues regarding witness order.
Next, each party will give opening statement. Petitioner will go first.
Then, Petitioner will call their first witness for “direct examination”. The school will then “cross-examine” (i.e. question) the same witness. Petitioner may “re-direct” (i.e. ask more questions) the same witness and the school may “re-cross” (i.e. ask more questions) the same witness. After the parties finish their questions, the witness will be excused, and Petitioner will call their next witness. This proceeds until Petitioner is finished calling witnesses. At this point, Petitioner will “rest”.
Next, the school will call their witnesses for direct examination, and Petitioner will cross-examine each witness. Thereafter, the school will “rest”.
Next the hearing officer will review procedural issues with the parties, including setting a deadline for the parties to submit post-hearing briefs (the post-hearing briefs summarize each parties’ arguments for the hearing officer).
Then, the hearing is over. Each party will receive the hearing transcript from the court reporter. Typically, the parties submit post-hearing briefs. The hearing officer will review the briefs and issue a written decision on the case. It usually takes about 2 - 3 weeks to receive the transcript. After receipt, the parties generally have 2 - 3 weeks to submit post-hearing briefs. Then, the hearing officer typically has approximately 2 - 3 weeks to issue a decision.
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