Due Process Hearings
A parent or Local Educational Agency (LEA) may file a due process complaint on any matter relating to the identification, evaluation or educational placement of a child with a disability or the provision of a free appropriate public education (FAPE) to the child.
- In the due process hearing, each party has the right to, among other things, be accompanied by counsel, present evidence, and cross-examine and compel the attendance of witnesses.
- The due process hearing is conducted by an impartial hearing officer who considers the information provided by the parent and the LEA, may ask questions of witnesses, and issues a decision that resolves the dispute, unless appealed.
- Generally, the party seeking relief has the burden of proof in the due process hearing. A few States, however, shift the burden of proof to the LEA.
- After the conclusion of the due process hearing, the impartial hearing officer must mail a copy of the hearing decision to each party no later than 45 calendar days from the beginning of the hearing timeline, unless the hearing officer granted an extension of the hearing timeline. Generally, the hearing officer must determine whether the child received a FAPE.
The resolution meeting is a process that provides parents and the Local Educational Agency (LEA) an opportunity to resolve the matters identified in the due process complaint. The resolution meeting is designed to be less adversarial than a due process hearing. The LEA cannot have an attorney at the meeting unless the parent also has an attorney present.
- The LEA must convene the resolution meeting within 15 calendar days of receiving notice of the due process complaint and prior to the due process hearing.
- The meeting must include the parents of the student, members of the individualized education program (IEP) team who have specific knowledge of the facts identified in the due process complaint, and a representative of the LEA who has decision-making authority on behalf of the LEA.
- In the resolution meeting, the parents of the student discuss their due process complaint and the facts that form the basis of the complaint. This provides the LEA an opportunity to resolve the dispute.
- Unlike mediation, the parties to the resolution meeting, do not have the benefit of a third party neutral. The presence of a neutral facilitator in the resolution meeting may increase the chances that the parties reach an agreement to resolve the due process complaint. However, whether one is provided is an individual State or LEA decision. Few States use a neutral facilitator in a resolution meeting.
- If the parents and the LEA resolve the complaint at the resolution meeting, the parties will sign a legally binding, written settlement agreement. Either party may void the signed, written settlement agreement within three business days of the date they executed the agreement.
The resolution meeting is not required when the parents and the LEA both agree in writing to waive the meeting, or agree to use the mediation process in lieu of the resolution process.
If the LEA has not resolved the due process complaint to the satisfaction of the parents within 30 calendar days of the receipt of the complaint, the due process hearing may occur.
Expedited Due Process Hearing
A parent of a student with a disability may request an expedited due process hearing if:
- the parent disagrees with the IEP team’s determination that the child’s behavior was not a manifestation of the child’s disability, or
- the parent disagrees with the LEA’s proposed disciplinary change in placement.
The LEA also may request an expedited hearing if it believes that maintaining the current placement of the child is substantially likely to result in injury to the child or others.
The expedited hearing must occur within 20 school days of the date the complaint is filed.
The hearing officer must issue a written decision to the parties within 10 school days after the hearing.
Unless the parents and LEA both agree in writing to waive the resolution meeting or agree to use the mediation process:
- A resolution meeting must occur within seven calendar days of receiving notice of the due process complaint; and
- The due process hearing may proceed unless the matter has been resolved to the satisfaction of both parties within 15 calendar days of the receipt of the due process complaint.
- The resolution period timeline runs concurrently with the 20 school day timeline for the hearing.