Students with disabilities may are qualify for specialized instruction and related services and supports under the Individuals with Disabilities Education Act.  Under the IDEA, educators and the parents or guardians of the Student develop and Individualized Education Plan (IEP), which provides for the education of the student.  When Parents and the school disagree on how to draft or implement the IEP, or a variety of other issues governed by the IDEA, either side may file a Request for Due Process.   Those involved in special education due process hearings need to be prepared and should understand how the process works. The due process hearing can be used in resolution of any issue related to the special education child, including testing, identification, evaluation, and placement, and as to the provision of a Free Appropriate Public Education (FAPE).

Due Process Hearing Request

A due process hearing may be requested by the parent or the school. A student over the age of 18 may also file a request. The process begins by submitting the request to the Arizona Department of Education (ADE). The ADE will assign the request a case number, and the request will be sent along to the Arizona Office of Administrative Hearings (OAH). A hearing date will be set, and all parties will be notified. An Administrative Law Judge (ALJ) will be appointed and all future correspondence and questions must be directed through the judge.

Procedures for Due Process Hearings

Proper procedures must be followed by all parties or there could be serious repercussions. Parties will be provided with a “Notice of Hearing”, which outlines the procedures for the hearing. The parties may require legal assistance to prepare, gather information, and assist with the case. It is important to note that the Public Education Agency (PEA) must tell parents about free or low-cost legal services available to them. Also, the PEA must provide parents with a Procedural Safeguards Notice. There is a two-year statute of limitations on filing requests for Due Process Hearings.

Response to Request

The PEA must respond to the hearing request within 10 days. The response must address every issue that is included in the complaint. The response must include an explanation of the action, along with a description of other actions which were not chosen, along with why they were rejected. It must also include a detailed explanation of the evaluation process, along with reports or records that were used to make decisions. A resolution meeting must be set to occur within 15 days of the complaint being filed.

Resolution Agreement and Tracking

The purpose of the resolution meeting is to gather together all the appropriate parties to discuss the complaint and determine if the issues can be resolved without a hearing. The meeting should include members of the student’s IEP team and the parents.  . The school must ensure that one of the school representatives in attendance is has the legal authority to make decisions and resolve the matter.  The school’s attorney cannot attend unless the parents also have an attorney who will be present. After the meeting, the parties have a period of 30 days to resolve the problem. After that time, if the issues are not yet resolved, the matter will go in front of the judge. It is strongly advised that both parties seek representation from an experienced education law attorney for due process hearings.

This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice regarding Special Education Due Process Hearings, or other Education Law matters, please feel free to contact Candyce B. Pardee at  800.863.6718, log on to udallshumway.com,  or contact an attorney in your area. Udall Shumway PLC is located in Mesa, Arizona with a branch office in Yuma, Arizona, and is a full service law firm. We assist Individuals, families, businesses, schools and municipalities in Mesa and the Phoenix/East Valley.