Special Education Due Process Hearings
Law-In-Brief: Special Education #2
Date: November, 2000
Prepared by: Beth Stevens, Legal Advocacy Team
Under the federal Individuals with Disabilities Education Act (IDEA) and
Washington law, parents or schools can challenge special education decisions
that they believe are inappropriate for an individual student. Such a challenge
is made through a due process hearing, which is an administrative hearing
arranged by the Office of the Superintendent of Public Instruction (OSPI).
What is a special education due process hearing? Who can request a due
process hearing?
A due process hearing is held when a parent, adult student or a school
district wants to appeal a decision about a student’s special education. Whoever
requests the hearing is called the petitioner, and the other party is called the
respondent. Due process hearings can be held to challenge a decision on
placement, eligibility for special education services, the details of a
student’s individualized education program (IEP), or any other decision about
the student’s special education services. WAC 392-172-350.
How do I request a due process hearing about my child’s IEP?
Parents can request a due process hearing by obtaining a request form from
the Office of Legal Services at OSPI, or by writing a letter to OSPI requesting
a hearing. The letter should include the following information (WAC
392-172-350):
Who conducts the hearing?
OSPI assigns a hearing officer to conduct the due process hearing. Hearing
officers must be impartial. This means that they cannot have a personal or
professional interest in the outcome of the hearing, and cannot be an employee
of any public agency which is involved in the student’s education (for example,
the school district). WAC 392-172-352.
How do I find out when and where my hearing will be?
The hearing officer will arrange a mutually agreeable time for the hearing to
be held. The hearing must be held in a convenient place for everyone involved.
WAC 392-172-356.
What are my rights during the hearing? Can my child attend the hearing? Can I
bring a lawyer?
Under Washington regulations, parents have the following rights in due
process hearings (WAC 392-172-354):
I can’t afford an attorney. Are there low-cost legal services for people in
due process hearings?
Washington state regulations require OSPI to inform you of any free or
low-cost legal and other relevant services available in your area. When you
request your hearing, OSPI must inform you about these services. WAC
392-172-352(1)(c).
How long will this take?
OSPI is responsible for ensuring that a final decision is reached and mailed
to the parents and the school district no later than 45 days after the request
for a due
process hearing was received by OSPI. If the parents or the school district
request an extension, the deadline for a final decision can be extended. WAC
392-172-356.
What is an "expedited" hearing?
An expedited hearing is a hearing in which the deadlines are shortened so
that an outcome can be reached sooner. Hearings are expedited when the student’s
placement is changed because the child is being disciplined (i.e., the student
is expelled or suspended for a prolonged period of time). WAC 392-172-38415.
There are different deadlines for expedited hearings than for regular hearings.
In an expedited hearing, the rule requiring parties to submit their evidence to
each other at least five days before the hearing is changed to two days. Also,
the 45-day deadline for a final decision cannot be extended in an expedited
hearing.
What happens to my child in the meantime?
During the hearing process, the student must remain in the educational
program he or she was in at the time the hearing request was made, unless the
parents agree to a different placement. This is often called the "stay-put"
provision. If the complaint involves initial admission to public school, the
student must be placed in public school and remain there throughout the hearing
process. WAC 392-172-364.
How will I know what the hearing officer decides?
Once the hearing officer decides on your case, the hearing officer will write
a final decision which includes the facts and legal standards on which the
decision is based. The hearing officer will either mail a copy of the final
decision to you, or give you a copy in person. Usually, the hearing officer must
make a final decision within 45 days of the day OSPI received your hearing
request. WAC 392-172-356.
What happens if the hearing officer sides with the school district? Do I have
any other options?
Once the hearing officer has made a final decision, both the school district
and the parents have a right to appeal the decision in Washington state or
federal court under the IDEA. WAC 392-172-360.
I don’t like what the school district is doing, but I’d rather work things
out without going through a hearing process. Are there other ways to resolve our
dispute?
Yes. OSPI offers mediation services for special education issues through
Sound Options Mediation. OSPI arranges for a mediator from Sound Options and
pays for the mediation services. Mediation is much less formal than the hearing
process. The mediation process is voluntary and cannot be used to delay or deny
the right to a due process hearing. Compliance with mediation outcomes is
voluntary and is not enforced by OSPI. Requests for mediation services can be
made in writing or verbally to OSPI. Additionally, OSPI will inform you about
mediation services if you request a due process hearing. WAC 392-172-350(6).
The information in this document was obtained from implementing federal and
state regulations for the Individuals with Disabilities Education Act, 34 C.F.R.
300, and WAC 392-172-350 to 392-172-364 and 392-172-38415.
This document is an information
service of the Washington Protection & Advocacy System (WPAS). It provides
general information only and should not be used as legal advice for any specific
situation. If you would like more information about this topic, call us and ask
for a Resource Advocate.
To receive this document in an alternative format,
such as large print or Braille, please call Washington Protection & Advocacy
System (WPAS) at 1-800-562-2702.
WPAS is a member of the National Disability Rights
Network
A substantial portion
of the WPAS budget is federally funded.
Back
To Top Of Page
