Special Education: Hearings and Appeals

What is a Due Process Hearing and Alternative Dispute Resolution?

What is a Due Process Hearing?

A due process hearing is a legal proceeding that ensures fairness in the decision-making process regarding your child. As a parent, if you disagree with a proposed or refused action pertaining to your child’s education, you or the school district may initiate a due process hearing to resolve the disagreement.

You may file a due process complaint within 2 years of the time the school district proposes or refuses to:

  1. consider or find that your child is disabled;
  2. evaluate your child;
  3. place your child in a school program that meets his or her unique individual needs; or
  4. provide your child with a free appropriate public education (FAPE) that meets your child’s needs.[1]

If your school district has not provided you with a copy of your rights to bring a complaint, then according to the Connecticut State Department of Education, the 2-year limit shall not begin until you receive a copy.[2] This procedural safeguard manual may be available on the Department of Education website.[3] You must forward a copy of the due process complaint to the appropriate state educational agency, which in Connecticut is the Due Process Unit of the Bureau of Special Education, State Department of Education.[4] The complaint must include the name of your child, the address of the residence of your child, the name of the school your child is attending, a description of the nature of the problem, which includes any related facts of which you are aware, and a proposed resolution to the problem.[5]

The party receiving a request for a hearing has 15 days from the date of receiving the due process complaint to notify the hearing officer and the other party if they believe the request for the hearing does not include the required information as stated above.[6] The hearing officer has 5 days to make a determination as to the adequacy of the hearing request and whether it meets the necessary requirements. If the hearing officer finds the complaint to be inadequate, you will have to file a new complaint. If the complaint is found to be adequate, your child’s school district must within 10 days send to you: an explanation of why the school proposed or refused to take the action raised in the complaint, a description of other options that the PPT team considered and the reasons why those options were rejected, a description of each evaluation procedure, assessment, record or report the school used as the basis for the proposed or refused action and a description of any other relevant facts the school relied upon in its proposed or refused action.[7]

Within 15 days of the school district receiving notice of the due process complaint and prior to the initiation of a hearing, the LEA must convene a meeting with you and other relevant members of the PPT team who have specific knowledge of the facts identified in the complaint. The purpose of this meeting is for you as a parent to discuss the due process complaint, so that the LEA has the opportunity to resolve the dispute without having to begin a due process hearing.[8] This meeting need not be held if both you and the school district agree in writing to waive the meeting.[9] If the LEA has not resolved the issues expressed in the due process complaint to your satisfaction within 30 days following receipt of notice of the complaint, the due process hearing may begin. A final decision must be made by the hearing officer no later than 45 days after the expiration of the 30 day period or adjusted time-periods if you failed to participate in the resolution meeting in a timely manner.[10]

A hearing officer may grant specific extensions of time beyond the 45 day period for certain reasons at the request of either party.[11] The hearing must be conducted at a time and place that is convenient for both you and your child. A copy of the final decision must be mailed to each of the parties.

Both you and the school district have the right to be accompanied and advised by counsel during the course of a due process hearing. Both parties may also be accompanied by individuals with special knowledge or training with respect to children with disabilities. Both parties may present evidence, as well as confront, cross-examine and compel the attendance of witnesses. Moreover, you and the school district are precluded from introducing evidence at the hearing that has not been disclosed to the other party at least 5 business days before the hearing. The hearing will be recorded and upon your request you may be provided at no cost with a written or electronic copy of the hearing, as well as the hearing decision.[12]

Where will my child be placed during a proceeding with my child’s school?

While a due process proceeding is pending, your child shall remain in his or her current educational setting as of the time the hearing was requested, unless you and the school district agree otherwise. This provision is known as “stay-put.”[13] There are, however, a few exceptions to the stay-put provision. If you have filed for a due process hearing with respect to a disagreement over the removal of your child from his or her placement and into an interim alternative education setting for matters related to weapons, drugs or infliction of serious bodily harm, your child will remain in the interim alternative education setting while the hearing is pending. Stay-put does not apply if you are challenging a manifestation determination, as a placement may change during these proceedings.

What is Mediation?

Mediation is an alternative process in which you may resolve a dispute that arises with your school district as it pertains to your child’s special education rights. Mediation is voluntary and both you and the school district must agree to enter into the mediation process. The mediation process must be held at a time and place that is convenient to the parties involved in the dispute.[14]

During mediation the mediator will be present to help you and the school district resolve any disputes that are pending. If a dispute is resolved through the mediation process, both parties must execute a legally binding agreement that sets forth the resolution. This document is enforceable in court.[15] Any discussions that occur during the mediation process, however, are confidential and may not be used as evidence in any subsequent due process hearings or civil actions.[16] If the parties are unable to resolve the dispute through mediation, either party may proceed with a due process hearing.[17]

The Connecticut State Department of Education, Bureau of Special Education, maintains a list of qualified mediators who are knowledgeable in laws and regulations pertaining to special education and related services. An individual who serves as a mediator may not be an employee of the school district that is involved in the education and care of your child and must not have a personal or professional interest that conflicts with their ability to be objective.[18]

The state will bear the cost of the mediation process.[19] As in the case of a due process hearing, both parties at their own cost may be accompanied by an attorney to help in the mediation conference.

What is an Advisory Opinion?

Another alternative dispute resolution mechanism is an advisory opinion. This is a non- binding opinion issued by a hearing officer after consideration of a presentation given by both you and the school district. Since an advisory opinion is non-binding you may pursue other avenues to resolve the matter but it may be helpful in settling the dispute without having to go through a formal hearing process or mediation proceeding.

According to the Connecticut State Department of Education, no recording will be made of the advisory opinion process and the confidential opinion may not be used in future proceedings. You and the school district may both be accompanied by an attorney, as well as up to two witnesses that may participate in the advisory opinion process.

What is the Special Education Complaint Resolution Process?

This procedural mechanism allows for a parent to file a written complaint with the Bureau of Special Education regarding allegations that your child’s local educational agency violated federal or state law pertaining to special education. This complaint must be filed within 1 year of the time in which you believe your child’s school district has violated the law. Your complaint should state that your child’s school district is failing to follow the IDEA or applicable Connecticut state law enacted to protect children with disabilities and recount the facts that form the basis of the complaint. Following an investigation, a written report as to the findings and conclusions will be mailed to you within 60 days of your request.

What are my rights to an appeal? May I bring a civil action if I disagree with a decision?

After a decision is made in a hearing, there are two possible avenues of appeal. First, if the hearing was conducted by a public agency other than the state educational agency, which in Connecticut, is the State Department of Education, you may appeal to the state agency. The State Agency will then review the record, evidence and other items relating to the initial hearing and make a final decision.[20]

The state agency decision is final unless one of the parties opts for the second avenue, which is to bring a civil action in either the Connecticut Superior Court or the United States District Court for the District of Connecticut. The party who brings such an action must do so within 90 days from the date of the decision of the hearing officer or the State review official.[21]


 

[1] 34 C.F.R §300.507(a)(1)-(2).
[2] Conn. Gen. Stat. Ann. §10-76(H)(4).
[3] 34 C.F.R. §300.504(b).
[4] 34 C.F.R. §300.508(a)(2).
[5] 34 C.F.R. §300.508(b)(1)-(6).
[6] 34 C.F.R. §300.508(d)(1).
[7] 34 C.F.R. §300.508((e)(i)-(iv).
[8] 34 C.F.R. §300.510(a)(2).
[9] 34 C.F.R. §300.510(a)(3)(i).
[10] 34 C.F.R §300.515(a)(1).
[11] 34 C.F.R §300.515(c).
[12] 34 C.F.R. §300.512(a)(1)-(5).
[13] 34 C.F.R. §300.518(a).
[14] 34 C.F.R. §300.506(b)(1).
[15] 34 C.F.R. §300.506(6)(7).
[16] 34 C.F.R. §300.506(b)(8).
[17] Conn. Gen. Stat. Ann. §10-76(h)(f)(2).
[18] 34 C.F.R. §300.506(c)(1)(i)-(ii).
[19] 20 U.S.C.A. §1415(e)(2)(D).
[20] 34 C.F.R. §300.514(b)(1)-(2).
[21] 34 C.F.R. §300.516(a)-(b).

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