Understanding IEP Due Process

IEP due process is protected under the Individuals with Disabilities Education Act, (IDEA) and provides parents with the right to resolve disputes with your school district.  There are two ways to resolve disputes, mediation and a due process hearing.

WHAT is MEDIATION?

During mediation, you and a representative of the school district meet with a neutral third party who then tries to help you reach an agreement.  The mediator has no authority to make a decision. Their job is to help you and the school district come up with a mutually agreed upon decision with regards to your dispute. You are not required to mediate but it can be a very good way to resolve a dispute. Each state has a list of mediators who are assigned cases on a random basis and there is usually no cost.

WHAT is an IEP DUE PROCESS HEARING?

If you cannot reach a decision through mediation, or if you prefer not to mediate you can request a due process hearing. Here, you and the school district present written evidence about the disputed issue and witnesses testify before a hearing officer. If you do not agree with the outcome of the hearing, you can appeal the decision all the way to state or federal court.

Usually, disputed issues revolve around parts of the IEP that that could not be agreed upon. If the school district has violated a legal rule, such as failing to hold an IEP meeting, conduct an evaluation, meet a time limit or implement the IEP, this is addressed through the complaint process, not due process.  IEP due process disputes are usually centered around disagreements over the following:

• A child's evaluation
• A child's eligibility (one party thinks a child qualifies for services, while another does not).
• A child's placement (each side disagrees on the child's programs and placement).
• The methodology used to assess a child (many parents want outside evaluations to determine eligibility, but the school must conduct the evaluation).
• Related services like aides and specialists (disagreements with aides, services, specialists and what is deemed necessary by the IEP team).
• Changes to a child's IEP program
• Suspension or expulsion of a child
  

IDEA requires you to formally file for IEP due process within two years after you know of the dispute. If you do not file within two years, you lose your rights. During the hearing process, your child is entitled to remain in their current placement until you reach an agreement with the school, settle the matter through mediation or get a court decision.

• Using a lawyer or special education advocate during due process is within your rights as a parent and may increase your chances of success. However, legal costs can be considerable and an attorney may spend 10-20 hours preparing for the hearing.  
• The school district does not have to pay your legal fees but during mediation, you can ask the school district, as part of your proposed settlement, to pay for any fees you have accumulated.
• If you go to hearing and you win your case, you will be entitled to reimbursement of your attorney’s fees. If you lose the hearing you are responsible for your own attorney fees but you will not have to pay the school district’s attorney fees. If a parent brings an attorney to a resolution meeting, the school district may also bring an attorney.
• There are many non-attorney advocates who are quite skilled in due process and their fees are usually lower then a lawyer. But, you are not entitled to reimbursement of an advocate’s fees if you prevail in a hearing. 

You must formally request IEP due process in order for a mediation or a fair hearing to be scheduled. You must provide specific written information about the dispute to initiate the process. There can be no hearing or mediation until you complete this first step.

You must provide written notice to the school district AND send a copy to the state department of education branch responsible for special education. Your written request must include:

1. Your name and address
2. Your child’s name and address
3. The name of your child’s school
4. A description of the disputed issue
5. Your desired resolution
6. Whether you want mediation or go directly to the hearing process.

Filing a request for a hearing should be considered a last resort since collaborating with your school district is always the best option.