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Due Process Hearings

In an ideal world, children with disabilities that impact their learning would receive a free and appropriate public education without the necessity for parental advocacy. Due to limited educational funds, this is often not the case and parents must advocate for their children in the school system. If a child is eligible for Individual Education Plan (IEP) services under the Individuals with Disabilities Education Act (IDEA), parents have due process rights with regards to the provision of academic services.

Due process involves a formal set of policies and procedures that must be followed by schools to ensure that children receive a free and appropriate public education. Due process procedures are a part of IDEA and help ensure that schools meet their obligations in providing services for all eligible children with disabilities. It is a fundamental right and parents and children are entitled to it.

Hearings

If a school district does not comply with IDEA, a parent is entitled to a “due process hearing.” A due process hearing is an administrative remedy and functions somewhat like a court proceeding, except that it does not operate under the formal rules of evidence. The proceeding often involves an opening and closing statement and the presentation of documentary evidence and testimony, sometimes from expert witnesses, such as medical and educational professionals.

There are many procedures and timelines involved in due process hearings and a special education attorney can be very helpful at advising on the requirements. An attorney is also trained in the best way to identify and present evidence and to present a compelling case for your child. Although parents know their children and understand their needs, the technical presentation of evidence is not something that most parents are trained in.

Process

In a due process hearing, parents may be represented by an attorney or may represent themselves. The school district will be represented by an attorney. When one side to a controversy has an attorney, the other side is disadvantaged if they are not also represented. Parents often request hearings when they beleive that their child's IEP is not being implemented properly, their child has been denied an appropriate education, or they disagree with the school about teaching methods. Sometimes parents believe that the school district has not provided necessary support services, such as speech, physical or occupational therapy. Although it is best if the parents and district can resolve such issues informally, that is not always possible.

Anatomy of a Due Process Hearing

A hearing officer or administrative law judge is the decision maker in a due process hearing. Usually a parent requests the hearing. The parent is then the “Plaintiff” – the person making the complaint. The Plaintiff has the burden of proof, which means that the Plaintiff has to present sufficient relevant and reliable evidence that the school district has not met legal requirements. The school district is the Respondent in this scenario.

The parties start by giving an opening statement identifying their position and what evidence they will present to support their position. The Plaintiff is the first to give the statement. The Respondent follows. After the opening statement, the Plaintiff presents evidence. Common types of evidence include the child's academic records, assessment referrals and reports, the IEP and progress reports. Evidence may be documentary or testimonial. Documents are usually put into evidence through the testimony of a witness who can identify the document and how he or she is familiar with it. The Respondent presents its case next.

Both parties may prepare and provide the hearing officer with “briefs” to support their positions. Briefs typically include background information on issues involved with the case and can include legal issues and authority. The briefs can make the proceedings more efficient and provide the hearing officer with something to review in preparation and decision-making. The parties may subpoena witnesses to testify. Each Party has the opportunity to question all witnesses called by either party during the hearing. An attorney can assist in identifying relevant evidence and is familiar with the rules governing legal techniques such as issuing a subpoena. The hearing officer considers all evidence and issues an opinion deciding the issue. Either party may appeal the decision.

If you would like assistance in representing your child’s interests in a due process hearing, contact Janko Law and Mediation, LLC. Our firm understands the importance of ensuring that children have the best possible education to set them up for success in adult years and our attorneys have first-hand experience with their own children requiring assistance in the school system. Call for a free consult at 303-210-4204 or complete our confidential online intake.

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